Existing law, as amended by Proposition 35 as approved by the voters at the November 6, 2012, statewide general election, requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Existing law, commencing January 1, 2021, establishes 3 tiers of registration based on specified criteria, for periods of at least 10 years, at least 20 years, and life, respectively, for a conviction of specified sex offenses. Willful failure to register, as required, is a misdemeanor, or a felony, depending on the underlying offense. The Legislature may amend Proposition 35 by a statute passed in each house by a majority vote.

This bill would add to the list of offenses requiring registration, the offense of soliciting, or agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor. The bill would also add this offense to the list of crimes the offense of soliciting, or agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor, except as specified, to the list of offenses requiring registration as a tier one offender on the sex offender registry commencing January 1, 2021. By imposing additional duties on local authorities, and by expanding the scope of persons who would be committing a crime by failing to register as a sex offender, this bill would create a state-mandated local program.

Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, requires a person who has been convicted of a felony offense to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law makes these provisions retroactive, regardless of when the crime charged or committed became a qualifying offense. The Legislature may amend Proposition 69 by a statute passed in each house by majority vote, as specified.

This bill would expand these provisions to require persons convicted of soliciting, agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. By imposing additional duties on local law enforcement agencies to collect and forward these samples, 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law, as amended by Proposition 35 as approved by the voters at the November 6, 2012, statewide general election, requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Existing law, commencing January 1, 2021, establishes 3 tiers of registration based on specified criteria, for periods of at least 10 years, at least 20 years, and life, respectively, for a conviction of specified sex offenses. Willful failure to register, as required, is a misdemeanor, or a felony, depending on the underlying offense. The Legislature may amend Proposition 35 by a statute passed in each house by a majority vote.

This bill would add to the list of offenses requiring registration, the offense of soliciting, or agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor. The bill would also add this offense to the list of crimes requiring registration as a tier one offender on the sex offender registry commencing January 1, 2021. By imposing additional duties on local authorities, and by expanding the scope of persons who would be committing a crime by failing to register as a sex offender, this bill would create a state-mandated local program.

Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, requires a person who has been convicted of a felony offense to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law makes these provisions retroactive, regardless of when the crime charged or committed became a qualifying offense. The Legislature may amend Proposition 69 by a statute passed in each house by majority vote, as specified.

This bill would expand these provisions to require persons convicted of specified prostitution misdemeanors soliciting, agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. By imposing additional duties on local law enforcement agencies to collect and forward these samples, 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law, as amended by Proposition 35 as approved by the voters at the November 6, 2012, statewide general election, requires persons convicted of specified sex offenses, or attempts to commit those offenses, to register with local law enforcement agencies while residing in the state or while attending school or working in the state. Willful failure to register, as required, is a misdemeanor, or a felony, depending on the underlying offense. The Legislature may amend Proposition 35 by a statute passed in each house by a majority vote.

This bill would add to the list of offenses requiring registration, the offense of soliciting, or agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor. By imposing additional duties on local authorities, and by expanding the scope of persons who would be committing a crime by failing to register as a sex offender, this bill would create a state-mandated local program.

Existing law, as amended by the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, Proposition 69, approved by the voters at the November 2, 2004, general election, requires a person who has been convicted of a felony offense to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. Existing law makes these provisions retroactive, regardless of when the crime charged or committed became a qualifying offense. The Legislature may amend Proposition 69 by a statute passed in each house by majority vote, as specified.

This bill would expand these provisions to require persons convicted of specified prostitution misdemeanors to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. By imposing additional duties on local law enforcement agencies to collect and forward these samples, 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: June 26, 2018

Counsel: Sandy Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 757

Author:(Glazer) – As Amended Ver:January 23, 2018

SUMMARY: Requires a person convicted of misdemeanor solicitation of a minor for prositution to register as a sex offender and to provide a DNA sample to the DNA databank. Specifically, this bill:

1. Requires, commencing January 1, 2021, a person convicted of solicitation of a minor to register as a sex offender for 10 years, unless the court finds that the defendant:
   
   1. Had reason to believe the minor was not a minor;
      
   2. Was misled about the minor’s age; or,
      
   3. Was less than three years older than the minor at the time of the solicitation.
      
2. Requires an adult convicted of solicitation of a minor to submit biological samples to the DNA databank.

EXISTING LAW:

1. Makes it a misdemeanor for an individual to solicit, agree to engage in, or engage in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution. (Pen. Code, § 647, subd. (b)(3).)
2. Requires any person arrested for or charged with a felony, and any person required to register as a sex offender or as an arsonist to submit buccal swab samples, a full palm print impression of each hand, and any blood specimens or other biological samples required for submission to the DNA databank. (Pen. Code, § 296, subd. (a).)
   
3. Makes it a misdemeanor to refuse to provide a specimen required by the DNA Act. (Pen. Code, § 298.1, subd. (a).)
   
4. Provides that The Department of Justice (DOJ), through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Pen. Code, § 295, subd. (g).)
   
5. Provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes, as specified. (Pen. Code, § 295.1, subds. (a) & (b).)
   
6. Requires, generally, persons convicted of enumerated sex offenses to register within five working days of coming into a city or county, with specified law enforcement officials in the city, county or city and county where he or she is domiciled, as specified. (Pen. Code, § 290.)
   
7. Allows the court to require sex offender registration for any offense not specifically listed in the statute if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. (Pen. Code, § 290.006, subd. (a).)
   
8. Provides that as of January 2, 2021, there will be a three-tiered registration system for sex offender registration and a person will be required to register for at least 10 years, at least 20 years or for their lifetime depending on what crime is requiring registration. (Pen. Code, § 290.)

FISCAL EFFECT: Unknown.

COMMENTS:

1. Author's Statement: According to the author, “SB 757 would require people convicted of soliciting or engaging in prostitution with a minor to provide DNA samples for law enforcement identification analysis. When the new tiered registry takes effect in 2021, this bill would also require those who are convicted to register as sex offenders for 10 years – the lowest tier.
   
   “Our bill would also allow those who are convicted to avoid registering as a sex offender if they had reason to believe the victim was not a minor, were misled about the victim’s age, or were less than three years older than the victim at the time of the solicitation.
   
   “In a study conducted by the Oakland Special Victims Unit, it was found that 85% of unsolved murders in the city involved a prostitute. Furthermore, 260 minors were rescued from prostitution in Oakland in 2014-15 alone.
   
   “This is not a problem particular to Oakland, however. Of all the people arrested for soliciting a prostitute, two-thirds were from outside of Oakland, including seven other counties. With no major metro area untouched by human trafficking, a statewide response is required to make sure we address those that perpetuate this system of sexual exploitation.”
   
2. Solicitation of Prostitution: The crime of soliciting another person to engage in prostitution requires proof that: (1) the defendant requested that another person engage in an act of prostitution; (2) the defendant intended to engage in an act of prostitution with the other person; and (3) the other person received the communication containing the request. (See CALCRIM No. 1154.) The crime occurs when the person has the specific intent to engage in either sexual intercourse or lewd acts in exchange for money or other consideration for the purpose of sexual arousal or gratification and communicates that intent. (See e.g. People v. Love (1980) 111 Cal.App.3d Supp. 1, 13; People v. Norris (1978) 88 Cal.App.3d Supp. 32, 38.) Actual sexual conduct is not an element of the crime.
   
3. Proposition 69: Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, was passed by the voters in 2004. The proposition expanded the categories of people required to provide DNA samples for law enforcement identification analysis. Under existing law, any person arrested for, or charged with, a felony, and any person required to register as a either a sex offender or arsonist is required to submit buccal swab samples, a full palm print impression of each hand and any blood specimens or other biological samples required for submission to the DNA databank.^[1] (Pen. Code, § 296.)
   
   In People v. Robinson (2010) 47 Cal.4th 1104, the California Supreme Court upheld the collection of DNA samples of persons convicted of any felony offenses, as required by Prop. 69. And recently, in People v. Buza (2018) 4 Cal.5th 658, the California Supreme Court upheld the application of Prop. 69 to persons arrested for, but not yet convicted of, a felony offense.
   
   According to the National Conference on State Legislatures, while 29 states collect DNA from at least some felonies only eight states collect DNA from specified misdemeanors. Of those states, Alabama, Arizona, Kansas, Louisiana, Minnesota, North Carolina, South Carolina and South Dakota, in all but Kansas and Minnesota the misdemeanors that are collected are misdemeanor sex offenses. Minnesota does not include all felonies and includes specific misdemeanors that are either sex offenses or things like stalking. (http://www.ncsl.org/Documents/cj/ArresteeDNALaws.pdf)
   
   Currently in California the only misdemeanors that are included are those for which a person must register as a sex offender or as an arsonist. This bill would expand the collection of DNA to include the misdemeanor crime of solicitation of a minor for purposes of prostitution. A DNA sample from an individual contains a tremendous amount of private and sensitive information about that individual. This bill raises the question of whether California should allow such a significant intrusion based on conviction of a non-violent misdemeanor offense.
   
4. Sex Offender Registration: Until recently, California was one of the few states that requires lifetime registration with no discernment for the type of offense.
   
   In a 2010 report, the California Sex Offender Management Board (CSOMB) recommended moving to a tiered registration system in California: "Recommended Changes to California Law on Sex Offender Registration and Internet Notification. It’s recommended that California amend its law on duration of registration, which should depend on individual risk assessment, history of violent convictions, and sex offense recidivism. The proposed changes to California law take into consideration the seriousness of the offender’s criminal history, the empirically assessed risk level of the offender, and whether the offender is a recidivist or has violated California’s sex offender registration law. Duration of registration would range from ten (10) years to lifetime (10/20/life). For purposes of the tiering scheme.” (<http://www.casomb.org/docs/CASOMB% 20Report%20Jan%202010_Final%20Report. pdf .)
   

In its 2016 annual report to the Legislature, CSOMB noted, “[t]he state now has over 97,000 registered sex offenders. Close to 75,000 of them live in California communities. Most of the others are in custody.” (http://www.casomb.org/docs/2016_CASOMB_Annual_Report-FINAL.PDF, pp. ii, 42.) In its report, CSOMB noted that its highest priority for 2017 was advocating for a system of tiered registry, because “The proposed change in the law would allow law enforcement, with their limited resources, to focus on those sex offenders who pose the higher risk of reoffending.” (Id. at p. ii.) In response, last year the Legislature passed SB 384 (Wiener) Chapter 541, Statutes of 2017, which establishes a three-tiered sex offender registry to take effect on January 1, 2021.

This bill would require, starting on January 1, 2021, a person convicted of solicitation of a minor to register as a sex offender for 10 years, unless the court finds that the defendant had reason to believe the minor was not a minor, that the defendant was misled about the minor’s age, or that the defendant is less than three years older than the minor. The effect would be to add numerous additional persons to the registry when it is already overburdened, thereby undermining efforts to allow law enforcement to focus on high risk sex offenders. The Attorney General’s 2016 report providing crime statistics states that there were 7,236 arrests of adults for misdemeanor prostitution. (See Crime in California, p. 31, https://openjustice.doj.ca.gov/resources/publications .) While the crime of solicitation applies to both the purchaser and the provider, and while only some of these arrests will have involved a minor, nevertheless, the number of offenders who would be required to register under the provisions of this bill would be significant.

It should be noted that under current law if a person actually engages in a sex act with a minor, there are other crimes of which the person can be convicted because a minor cannot consent to sex. (See Pen. Code, § 261.5.) The penalties for these offenses almost universally include long prison sentences, and require sex offender registration.

Moreover, under existing law a court has discretion to require sex offender registration for any offense if it finds that the person committed the offense as a result of sexual compulsion or for the purposes of sexual gratification. (Pen. Code, § 290.006, subd. (a).) The California Department of Justice has informed this Committee that currently there are 2,077 registrants registering pursuant to this provision. Because, by its nature, the solicitation of an act of prostitution would be committed for the purposes sexual gratification, the court already has discretion to order registration in an appropriate case. Therefore, the sex-offender registration provisions of this bill are unnecessary.

1. Argument in Support: According to the Alameda County District Attorney’s Office, “Buyers of sex perpetuate sex trafficking by creating demand for it. Although there have been efforts to protect minors, not enough has been done to address those that perpetuate this system. As long as there is a demand, there will be an exploiter to fill it. Individuals who purchase human beings for sex fuel the market that traffickers supply with their victims. Until we eliminate the demand, the sex exploitation of our society’s most vulnerable girls, women, men and boys, will continue.
   
   “Senate Bill 757 will help our ability to identify buyers of sex who have sexually assaulted someone, most of which are sexually exploited minors. It is common for these individuals to escalate the crime they are committing. If we could identify and link these offenders sooner, we can prevent crimes.”
   
2. Arguments in Opposition:
   
   1. According to the California Attorneys for Criminal Justice, “SB 757 would extend this [sex offender registration] requirement to people convicted of soliciting an act of prostitution with a minor, under Penal Code section 647(b)(3). This offense does not require that the offender know or even suspect that the person solicited is a minor. There is nothing inherent in this offense indicating that the accused is a sexual predator. Frankly, the type of sexual offenses the public is most concerned about are those involving predatory activity, those by force or violence. This legislation includes offenses in which the accused is not even actually aware that someone is a minor. Furthermore, the crime is complete when the solicitation is made, or when there is an agreement for prostitution, without any requirement that sexual activity actually take place.
      
      “If there is actual sexual conduct with a minor, or attempted sexual conduct with someone the offender knows to be a minor, more serious crimes will have been committed. This means that in practice, convictions under section 647(b)(3) will rest on solicitation of prostitution from a person not know to be a minor. SB 757 would be a sharp break with the current law on sex offender registration. California’s Sex Offender Management Board has recognized that the state’s registration laws already are overly broad resulting in a dilution of law enforcement resources, largely as a result of a mandate to monitor individuals who do not pose an ongoing risk of predatory behavior. SB 757 would further undermine the usefulness of California’s sex offender laws, [and] divert law enforcement resources.
      
   2. According to the American Civil Liberties Union of California, “Given that low-income people of color and LGBTQ people are stopped, arrested, and convicted for solicitation crimes at higher rates than higher income people, whites, and non-LGBTQ people, respectively, it follows that they will also be disproportionately impacted by the negative consequences of DNA collection and sex offender registration requirements, thus further expanding the disparities plaguing our criminal justice system.
      
      “Racial justice, civil liberties, and privacy advocates across the country have argued against the use of DNA databases in law enforcement given the disparate arrest and conviction rates of people of color. A report for the Council for Responsible Genetics termed the practice, ‘building Jim Crow’s database.’^[2] Inclusion in the DNA database opens people up to wrongful arrests and convictions, and raises very serious privacy concerns.
      
      “In California, inclusion in the database also potentially subjects people’s family members to investigation, through a controversial technique called ‘familial DNA searching,’ which extends the size and reach of the California database to effectively include the parents, children, and siblings of the millions of convicted and arrested people whose DNA profiles are already stored in the database. Given California’s history of protecting vulnerable communities – including immigrant and LGBTQ communities – from invasions of privacy by the government and unnecessary criminal investigation, and at a time when California is serving as a national leader in enhancing these protections, we fear the DNA collection requirements of SB 757 head in the opposite direction.”
      
3. Related Legislation:
   
   1. AB 1584 (Gonzalez-Fletcher) would specify that unless otherwise required by law, law enforcement shall not collect a DNA sample from a minor without first obtaining written consent from the minor and the minor’s parent or legal guardian. AB 1584 is pending vote on the Senate Floor.
      
   2. AB 1738 (Cunningham) would have required an adult is convicted of soliciting, engaging in, or agreeing to engage in an act of prostitution with a minor, to register as a sex offender for 20 years, if the person knew, or reasonably should have known, that the minor was both underage and a victim of human trafficking. AB 1738 failed passage in this Committee.
      
   3. SB 781 (Glazer) would have required DNA samples from individuals convicted of drug and theft-related crimes that are now misdemeanors under Proposition 47. SB 781 was held in the Senate Public Safety Committee.
      
4. Prior Legislation:
   
   1. AB 16 (Cooper), of the 2017-2018 Legislative Session, would have required DNA samples from individuals convicted of convicted of drug and theft-related crimes that are now misdemeanors under Proposition 47. AB 16 failed passage on the Assembly Floor.
      
   2. SB 384 (Wiener) Chapter 541, Statutes of 2017, established a three-tiered sex offender registry, requiring the most serious sex offenders (tier three) to register for life, tier two sex offenders to register for 20 years, and tier one sex offenders to register for 10 years.
      
   3. AB 390 (Cooper), of the 2015-2016 Legislative Session, would have required persons convicted of specified misdemeanors to provide buccal DNA samples. AB 390 failed passage in the Senate Public Safety Committee.
      
   4. AB 733 (Chavez), of the 2015-2016 Legislative Session, would have required sex offender registration for a person convicted of the misdemeanor offense of solicitation of a minor. AB 733 failed passage in the Assembly Public Safety Committee.
   5. AB 1912 (Achadjian), of the 2015-2016 Legislative Session, would have required a person convicted of soliciting a minor, who the person knew or reasonably should have known, was both a minor and a victim of human trafficking to register as a sex offender for a period of five years after a first conviction, 10 years after a second conviction, and 20 years after a third or subsequent conviction. AB 1912 failed passage in the Assembly Public Safety Committee.
   6. SB 1355 (Glazer) of the 2015-2016 Legislative Session, would have required persons convicted of specified misdemeanors to provide buccal DNA samples. SB 1355 failed passage in the Senate Public Safety Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney’s Office
California Police Chiefs Association
California State Sheriffs’ Association

Opposition

American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association

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

1. Law enforcement can obtain a DNA sample from a juvenile only if he or she has been found guilty of a felony or required to register as a sex offender. (Pen. Code, § 290, subd. (a).) ↑

2. Harry G. Levine et al., Drug Arrests and DNA: Building Jim Crow’s Database,” Council for Responsible Genetics Forum on Racial Justice Impacts of Forensic DNA Databanks (2008), available at http://www.councilforresponsiblegenetics.org/pagedocuments/0rrxbggaei.pdf. ↑

 THIRD READING  

Bill No: SB 757

Author:

Amended: 1/23/18

Vote:

SENATE PUBLIC SAFETY COMMITTEE: 3-3, 4/18/17 (FAIL)

AYES: Skinner, Anderson, Stone

NOES: Bradford, Mitchell, Wiener

NO VOTE RECORDED: Jackson

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 1/9/18

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: 7-0, 1/18/18

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

SUBJECT:

SOURCE: Author

DIGEST:

This bill requires a convicted of misdemeanor solicitation of a minor to register as a sex offender for 10 years, except as provided and an adult convicted of misdemeanor solicitation of a minor to give a sample to the DNA databank.

ANALYSIS:

Existing law:

1. Provides that the Department of Justice (DOJ), through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code, § 295 (g).)
2. Provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Penal Code § 295.1 (a) & (b).)
3. Provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:
   • Forensic casework and forensic unknowns;
   • Known and evidentiary specimens and samples from crime scenes or criminal investigations;
   • Missing or unidentified persons;
   • Persons required to provide specimens, samples, and print impressions;
   • Legally obtained samples; and
   • Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (Penal Code § 295.1)
4. Specifies that the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected send them promptly to the DOJ.(Penal Code § 298.)
5. Requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)
6. Provides any person arrested for or charged with a felony and any person required to register as a sex offender or arsonist shall be required to submit buccal swab samples, a full palm print impression of each hand and any blood specimens or other biological samples required for submission to the DNA databank. (Penal Code § 296)
7. Makes it a misdemeanor for an individual to solicit, or agree to engage in, or engage in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by another person who is 18 years of age or older to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution. (Penal Code § 647 (b)(2))
8. Makes it a misdemeanor for an individual to solicit, or who agree to engage in, or engage in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution. (Penal Code § 647 (b)(3))
9. Requires, generally, persons convicted of enumerated sex offenses to register within five working days of coming into a city or county, with specified law enforcement officials in the city, county or city and county where he or she is domiciled, as specified.1 (Penal Code § 290.) Existing law provides that registration generally must be updated annually, within five working days of a registrant’s birthday. (Penal Code § 290.012(a).) In some instances, registration must be updated once every 30 or 90 days, as specified. (Penal Code §§ 290.011, 290.012.)
10. Provides that as of January 2, 2021, there will be a three tiered registration system for sex offender registration and a person will be required to register for at least 10 years, at least 20 years or for their lifetime depending on what crime is requiring registration. (Penal Code § 290)

This bill:

1. Provides that a person, excluding a juvenile, convicted of Penal Code 647 (b) (3), must submit the required samples to be included in the DNA databank.
2. Provides that an adult convicted of Penal Code 647 (b) or (3) must register as a sex and when tiered registry takes effect in 2021 then the registration will fall within tier one, requiring registration or a period of 10 years unless the court finds that the defendant had reason to believe the victim was not a minor, was misled about the victim’s age, or was less than three years older than the victim at the time of the solicitation.

Background

According to the author:

Buyers of sex, or Johns, perpetuate sex trafficking by creating a demand for it. Although there have been efforts to protect these minors, not enough has been done to address those that perpetuate this system. Research shows a correlation between the sexual exploitation by Johns and other violent crimes they commit.

In 2006, a data analysis by the Oakland Police Department’s Special Victims Unit (SVU) found that the vast majority of Oakland’s unsolved homicides also involved victims who were or suspected to be engaged in prostitution activity. Of nearly 200 unsolved homicides in Oakland, 85 percent of these cases involved the victim being a prostitute. Furthermore, during 2014-2015, 2,610 women and girls were arrested or rescued from prostitution, of which 10 percent were minors.

This is not a problem limited to Oakland. Of the 245 Johns arrested in Oakland in 2014-2015, only one-third were Oakland residents, according to the Oakland Police Department. The remaining two-thirds of those arrested came from 52 other cities across the Bay Area and state, including seven counties outside of Alameda County. A handful came from three other states. This requires a statewide response.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

1. Court: Unknown, potentially-significant cost pressures (General Fund*) to the court to adjudicate charges brought against defendants who willfully failing to register based on the offense added to the registry by this measure. While the superior 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.

1. Department of Justice: Unknown costs (General Fund), ranging from significant to absorbable related to a possibility of increased personnel and technology system changes (depending on where the department is in the process to change the system to accommodate the tiered registry when it is required to implement this measure). Unknown but likely minor and absorbable costs (special fund**) to receive and test samples and input data into federal and state databases.
2. Local law enforcement: Unknown, potentially-significant costs (local funds, General Fund) to facilitate the registration and annually update the registration of individuals required to be on the registry and to administer the collection of buccal swabs, print impression, and blood specimens. The actual costs would be dependent on the number of people convicted of this offense. These costs could be subject to reimbursement by the state to the extent that funds within a county’s DNA Identification Fund (after transmittal of specified amounts to DOJ) are insufficient to reimburse the local agency for costs related to collecting samples.
3. Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs (local funds) to prosecute and incarcerate those charged with and found guilty of willfully failing to register based on the offense added to the registry by this bill. Costs would be offset, to a degree, by fee and assessment revenue.

*Trial Court Trust Fund

**DNA Identification Fund

SUPPORT: (Verified 1/19/18)

Alameda County District Attorney

Association for Los Angeles Deputy Sheriffs

Association of Deputy District Attorneys

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California Narcotic Officers Association

California State Sheriffs’ Association

Crime Victims United

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Riverside Sheriffs’ Association

OPPOSITION: (Verified 1/19/18)

ACLU

California Attorneys for Criminal Justice

California Public Defenders Association

Courage Campaign

ARGUMENTS IN SUPPORT: In support the Alameda County District Attorney states:

Buyers of sex, perpetuate sex trafficking by creating a demand for it. Although there have been efforts to protect minors, not enough has been done to address those that perpetuate this system. As long as there is demand, there will be an exploiter to fill it. Individuals who purchase human beings for sex fuel the market that traffickers supply with victims. Until we eliminate the demand, the sex exploitation of our society’s most vulnerable girls, women and men and boys, will continue.

ARGUMENTS IN OPPOSITION: In opposition the ACLU notes:

The sex offender registration requirements of this bill will place a disproportionate burden on low-income communities of color and LGBTQ communities. In California, people who are required to register as sex offenders are currently required to do so for the remainder of their natural lives. This is true regardless of their individual circumstances or the nature of the crime for which they were convicted. People deemed “transient,” meaning they do not have a stable residence, are required to register every 30 days and face criminal charges if they fail to do so. In addition to potential criminal charges for technical violations of the registration laws, the social consequences of registration can place already disadvantaged communities at greater disadvantage. For instance, inclusion on sex offender registries can make it more difficult to get a job, find housing, parent and rehabilitate. Inclusion on registries can be destabilizing in other ways as well, causing some people to fall into depression and exacerbating other mental health conditions.

***

Given the wealth gaps and disparate criminal justice system treatment low-income people of color and LGBTQ people already face, as well as the higher increases of mental illness in these populations due to various forms of trauma—including trauma based on racism, homophobia, and transphobia—a bill that will disproportionately require people from these communities to register on account of a solicitation conviction will only continue to widen the gaps.

***

Given that low-income people of color and LGBTQ people are stopped, arrested, and convicted for the crimes in SB 757 at higher rates than higher income people, whites, and non-LGBTQ people, respectively, it follows that they will also be disproportionately impacted by the negative consequences of DNA collection and sex offender registration requirements, thus further widening the disparities plaguing our criminal justice system.

Prepared by:

1/24/18 15:33:28

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 757 (Glazer) - Prostitution: sex offender registration and DNA collection

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

The following information is revised to reflect amendments

adopted by the committee on January 18, 2018

Bill Summary:

SB 757 would require people convicted of specified misdemeanor offenses related to buying sex with a minor to register on the Sex Offender Registry and to submit biometric data.

Fiscal Impact:

• Court: Unknown, potentially-significant cost pressures (General Fund*) to the court to adjudicate charges brought against defendants who willfully failing to register based on the offense added to the registry by this measure. While the superior 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.

• Department of Justice: Unknown costs (General Fund), ranging from significant to absorbable related to a possibility of increased personnel and technology system changes (depending on where the department is in the process to change the system to accommodate the tiered registry when it is required to implement this measure). Unknown but likely minor and absorbable costs (special fund**) to receive and test samples and input data into federal and state databases.
• Local law enforcement: Unknown, potentially-significant costs (local funds, General Fund) to facilitate the registration and annually update the registration of individuals required to be on the registry and to administer the collection of buccal swabs, print impression, and blood specimens. The actual costs would be dependent on the number of people convicted of this offense. These costs could be subject to reimbursement by the state to the extent that funds within a county’s DNA Identification Fund (after transmittal of specified amounts to DOJ) are insufficient to reimburse the local agency for costs related to collecting samples.
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs (local funds) to prosecute and incarcerate those charged with and found guilty of willfully failing to register based on the offense added to the registry by this bill. Costs would be offset, to a degree, by fee and assessment revenue.

*Trial Court Trust Fund

**DNA Identification Fund

Author Amendments:

Limit the Sex Offender Registry registration requirement for the specified misdemeanor offenses related to buying sex to adults, excluding adult defendants who the court finds had reason to believe the other party was not a minor, who were misled about the other party’s age, or who were less than three years older than the other party at the time of solicitation.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 757 (Glazer) - Prostitution: sex offender registration and DNA collection

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

Bill Summary:

SB 757 would require people convicted of specified misdemeanor offenses related to buying sex with a minor to register on the Sex Offender Registry and to submit biometric data.

Fiscal Impact:

• Court: Unknown, potentially-significant cost pressures (General Fund*) to the court to adjudicate charges brought against defendants who willfully failing to register based on the offense added to the registry by this measure. While the superior 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.

• Department of Justice: Unknown costs (General Fund), ranging from significant to absorbable related to a possibility of increased personnel and technology system changes (depending on where the department is in the process to change the system to accommodate the tiered registry when it is required to implement this measure).
• Local law enforcement: Unknown, potentially-significant costs (local funds, General Fund) to facilitate the registration and annually update the registration of individuals required to be on the registry and to administer the collection of buccal swabs, print impression, and blood specimens. The actual costs would be dependent on the number of people convicted of this offense.
• Prosecution & incarceration: Unknown potential increase in non-reimbursable local enforcement and incarceration costs (local funds) to prosecute and incarcerate those charged with and found guilty of willfully failing to register based on the offense added to the registry by this bill. Costs would be offset, to a degree, by fee and assessment revenue.

*Trial Court Trust Fund

Background:

People convicted of specified sex offenses and certain acts of human trafficking for purposes of committing various sex offenses or extortion, as specified, or attempts to commit those offenses, are required to register with local law enforcement agencies while residing, attending school, or working in California. Willfully failing to register is a misdemeanor offense that is punishable by imprisonment in the county jail for up to one year if the underlying offense that led to the registration requirement is a misdemeanor conviction or juvenile adjudication. Alternatively, willfully failing to register is a felony offense that is punishable by imprisonment in the state prison for sixteen months, two years, or three years if the underlying offense that led to the registration requirement is a felony conviction or juvenile adjudication.

The Department of Justice (DOJ) is required to make publicly available online certain information about registrants. That information includes, among other things, whether the person was subsequently incarcerated for another felony. A person may apply to be excluded from the online posting. Commencing on January 1, 2021, California will shift from a lifetime registration system to a three-tiered system in which a person will be required to register for at least ten years, at least twenty years, or life, depending on his or her underlying offense(s).

Additionally, a person who is (1) convicted of a felony offense, (2) arrested for one of a list of specified felony offenses, (3) required to register on the Sex Offender Registry, or (4) referred by the court to a mental health facility or sex offender treatment program, as specified, must provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis. The Department of Justice DNA Laboratory serves as the repository for the collected blood specimens, buccal swab, and other biological samples. The laboratory analyzes the material and stores, compiles, correlates, compares, maintains, and uses DNA and forensic identification profiles and records related to, among other things, forensic casework, material from crime scenes or criminal investigations, and missing or unidentified persons.

It is a misdemeanor, punishable by up to six months imprisonment in the county jail and/or a base fine of up to $1,000, to solicit, agree to engage in, or engage in, an act of prostitution with a minor in exchange for the individual providing compensation, money, or anything of value to the minor.

Proposed Law:

This bill would:

• Require a person convicted of soliciting, or agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor to register on the Sex Offender Registry. Commencing on January 1, 2021, this offense would be placed on tier one of the registry, requiring registration for at least ten years.
• Require explicitly persons convicted of soliciting, agreeing to engage in, or engaging in, an act of prostitution with a minor in exchange for providing money or compensation to the minor to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis.

Staff Comments:

The fiscal impact of this bill on the court or DOJ cannot be known with certainty. With respect to the court, the actual impact will be dependent on numerous factors, including, but not limited to, judicial and prosecutorial discretion, the criminal history of a defendant, and the factors unique to each case. As willfully failing to register on the Sex Offender Registry is punishable as a misdemeanor 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. Consequently, to the extent that the court adjudicates, on average, a dozen or more crimes of failing to register where the base offense is soliciting or engaging in an act of prostitution with a minor that otherwise would not have been filed or resulted in a criminal action, court costs of this bill would surpass the Suspense File threshold.

With respect to DOJ, the number of individuals who would be required to register because of this measure would determine if an increased workload necessitates additional personnel. Given the tiered structure of the registry starting in 2021, department staff must determine in which tier to place a new registrant. This determination would depend on criminal history and other factors and materials that staff would collect and examine. A similar analysis would be undertaken to determine if a person is suitable for removal from the registry at the conclusion of the ten-year period. Consequently, if a large volume of individuals were required to register because of this bill, department costs would increase commensurately.

Staff notes that the changes that would be made to Penal Code section 296 by this measure appear to be unnecessary. Subdivision (a)(3) of that section currently mandates a person who is required to register on the Sex Offender Registry to also submit his or her biometric data to the state. As SB 757 would require registration of a person convicted of buying sex with a minor (i.e., Penal Code section 647, subdivision (b)(3)), existing law would, in turn, call for that person to also provide his or her biometric data. Consequently, the author may wish to explore removing that provision from this bill in the interest of maintaining clarity of the Penal Code.

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 757 Hearing Date: January 9, 2018

Subject: Prostitution: Sex Offender Registration and DNA Collection

HISTORY

Source: Alameda County District Attorney’s Office

Prior Legislation: SB 1355 (Glazer) held Senate Public Safety 2016

AB 390 (Cooper) held Senate Public Safety 2015

Proposition 69 November 2, 2004

SB 883 (Margett) not heard Assembly Public Safety 2004

SB 284 (Brulte) failed Senate Public Safety 2003

SB 1242 (Brulte) Chapter 632, Stats. 2002

AB 2105 (La Suer) Chapter 160, Stats. 2002

AB 673 (Migden) Chapter 906, Stats. 2001

AB 2814 (Machado) Chapter 823, Stats. 2000

AB 557 (Nakano) not heard in Senate Public Safety 1999-2000

SB 654 (Schiff) Chapter 475, Stats. 1999

AB 1332 (Murray) Chapter 696, Stats. 1998

Support: Association for Los Angeles Deputy Sheriffs; Association of Deputy District Attorneys; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Narcotic Officers Association; California State Sheriffs’ Association; Crime Victims United; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Riverside Sheriffs’ Association

Opposition: ACLU; California Attorneys for Criminal Justice; California Public Defenders Association; Courage Campaign

PURPOSE

The purpose of this bill is to require a person convicted of misdemeanor solicitation of a minor to register as a sex offender for 10 years and an adult convicted of misdemeanor solicitation of a minor to give a sample to the DNA databank.

Existing law provides that the Department of Justice (DOJ), through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code, § 295 (g).)

Existing law provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Penal Code § 295.1 (a) & (b).)

Existing law provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:

• Forensic casework and forensic unknowns;
• Known and evidentiary specimens and samples from crime scenes or criminal investigations;
• Missing or unidentified persons;
• Persons required to provide specimens, samples, and print impressions;
• Legally obtained samples; and
• Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (Penal Code § 295.1)

Existing law specifies that the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected send them promptly to the DOJ.(Penal Code § 298.)

Existing law requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)

Existing law provides any person arrested for or charged with a felony and any person required to register as a sex offender or arsonist shall be required to submit buccal swab samples, a full palm print impression of each hand and any blood specimens or other biological samples required for submission to the DNA databank. (Penal Code § 296)

Existing law makes it a misdemeanor for an individual to solicit, or agree to engage in, or engage in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by another person who is 18 years of age or older to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution. (Penal Code § 647 (b)(2))

Existing law makes it a misdemeanor for an individual to solicit, or who agree to engage in, or engage in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor. An individual

agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution. (Penal Code § 647 (b)(3))

This bill provides that a person, excluding a juvenile, convicted of Penal Code 647 (b) (3), must submit the required samples to be included in the DNA databank.

Existing law generally requires persons convicted of enumerated sex offenses to register within five working days of coming into a city or county, with specified law enforcement officials in the city, county or city and county where he or she is domiciled, as specified.1 (Penal Code § 290.) Existing law provides that registration generally must be updated annually, within five working days of a registrant’s birthday. (Penal Code § 290.012(a).) In some instances, registration must be updated once every 30 or 90 days, as specified. (Penal Code §§ 290.011, 290.012.)

Existing law provides that as of January 2, 2021, there will be a three tiered registration system for sex offender registration and a person will be required to register for at least 10 years, at least 20 years or for their lifetime depending on what crime is requiring registration. (Penal Code § 290)

This bill provides that an adult convicted of Penal Code 647 (b) or (3) must register as a sex and when tiered registry takes effect in 2021 then the registration will fall within tier one, requiring registration or a period of 10 years.

COMMENTS

1. Need for This Bill

According to the author:

Buyers of sex, or Johns, perpetuate sex trafficking by creating a demand for it. Although there have been efforts to protect these minors, not enough has been done to address those that perpetuate this system. Research shows a correlation between the sexual exploitation by Johns and other violent crimes they commit.

In 2006, a data analysis by the Oakland Police Department’s Special Victims Unit (SVU) found that the vast majority of Oakland’s unsolved homicides also involved victims who were or suspected to be engaged in prostitution activity. Of nearly 200 unsolved homicides in Oakland, 85 percent of these cases involved the victim being a prostitute. Furthermore, during 2014-2015, 2,610 women and girls were arrested or rescued from prostitution, of which 10 percent were minors.

This is not a problem limited to Oakland. Of the 245 Johns arrested in Oakland in 2014-2015, only one-third were Oakland residents, according to the Oakland Police Department. The remaining two-thirds of those arrested came from 52 other cities across the Bay Area and state, including seven counties outside of Alameda County. A handful came from three other states. This requires a statewide response.

2. Register as a Sex Offender

This bill would require any person who solicits a minor for prostitution to register as a sex offender. When tiered registry takes effect, this crime will fall within tier one thereby requiring registration for 10 years.

The registration requirement in this bill includes a minor who solicits another minor.

Sex or sex acts with a minor can already be charged as a number of offenses that already requires registration. Would having a person register as a sex offender for this offense discourage prosecutors from charging the more serious offenses?

Penal Code 647 (b)(3) does not require the person to actually know that the individual they are soliciting is under 18. Should a person who unknowingly solicits a person under 18 for prostitution be required to register as a sex offender for 10 years with all the consequences that come with registration?

Should a minor who solicits another minor as a prostitute be required to register as a sex offender for life and suffer all the consequences that come with registration?

3. DNA Databank

This bill would provide that any adult who is convicted of solicitation of a minor or adult be required to give his or her DNA to the DNA databank.

The profile derived from a DNA sample is uploaded into the state's DNA databank, which is part of the national Combined DNA Index System (CODIS), and can be accessed by local, state and federal law enforcement agencies and officials. When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a "hit," the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. CODIS also performs weekly searches of the entire system. In CODIS, the profile does not include the name of the person from whom the DNA was collected or any case-related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. CODIS is also the name of the related computer software program. CODIS's national component is the National DNA Index System (NDIS), the receptacle for all DNA profiles submitted by federal, state, and local forensic laboratories. DNA profiles typically originate at the Local DNA Index System (LDIS), then migrate to the State DNA Index System (SDIS), containing forensic profiles analyzed by local and state laboratories, and then to NDIS.

The only misdemeanors in the DNA databank are those sex offense misdemeanors for which registration is required. These offenses are forcible sex offenses or a person is guilty because the person is a minor and can’t consent. Should solicitation of minor also require a DNA sample?

4. Argument in Support

In support the Alameda County District Attorney states:

Buyers of sex, perpetuate sex trafficking by creating a demand for it. Although there have been efforts to protect minors, not enough has been done to address those that perpetuate this system. As long as there is demand, there will be an exploiter to fill it. Individuals who purchase human beings for sex fuel the market that traffickers supply with victims. Until we eliminate the demand, the sex exploitation of our society’s most vulnerable girls, women and men and boys, will continue.

5. Argument in Opposition

In opposition the ACLU notes:

The sex offender registration requirements of this bill will place a disproportionate burden on low-income communities of color and LGBTQ communities. In California, people who are required to register as sex offenders are currently required to do so for the remainder of their natural lives. This is true regardless of their individual circumstances or the nature of the crime for which they were convicted. People deemed “transient,” meaning they do not have a stable residence, are required to register every 30 days and face criminal charges if they fail to do so. In addition to potential criminal charges for technical violations of the registration laws, the social consequences of registration can place already disadvantaged communities at greater disadvantage. For instance, inclusion on sex offender registries can make it more difficult to get a job, find housing, parent and rehabilitate. Inclusion on registries can be destabilizing in other ways as well, causing some people to fall into depression and exacerbating other mental health conditions.

***

Given the wealth gaps and disparate criminal justice system treatment low-income people of color and LGBTQ people already face, as well as the higher increases of mental illness in these populations due to various forms of trauma—including trauma based on racism, homophobia, and transphobia—a bill that will disproportionately require people from these communities to register on account of a solicitation conviction will only continue to widen the gaps.

***

Given that low-income people of color and LGBTQ people are stopped, arrested, and convicted for the crimes in SB 757 at higher rates than higher income people, whites, and non-LGBTQ people, respectively, it follows that they will also be disproportionately impacted by the negative consequences of DNA collection and sex offender registration requirements, thus further widening the disparities plaguing our criminal justice system.

-- END –

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 757 Hearing Date: April 18, 2017

Subject: Prostitution: Sex Offender Registration and DNA Collection

HISTORY

Source: Alameda County District Attorney’s Office

Prior Legislation: SB 1355 (Glazer) held Senate Public Safety 2016

AB 390 (Cooper) held Senate Public Safety 2015

Proposition 69 November 2, 2004

SB 883 (Margett) not heard Assembly Public Safety 2004

SB 284 (Brulte) failed Senate Public Safety 2003

SB 1242 (Brulte) Chapter 632, Stats. 2002

AB 2105 (La Suer) Chapter 160, Stats. 2002

AB 673 (Migden) Chapter 906, Stats. 2001

AB 2814 (Machado) Chapter 823, Stats. 2000

AB 557 (Nakano) not heard in Senate Public Safety 1999-2000

SB 654 (Schiff) Chapter 475, Stats. 1999

AB 1332 (Murray) Chapter 696, Stats. 1998

Support: Association for Los Angeles Deputy Sheriffs; Association of Deputy District Attorneys; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Narcotic Officers Association; California State Sheriffs’ Association; Crime Victims United; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Riverside Sheriffs’ Association; San Diego County District Attorney

Opposition: ACLU; California Attorneys for Criminal Justice; California Public Defenders Association; Courage Campaign

PURPOSE

The purpose of this bill is to require a person convicted of misdemeanor solicitation of a minor to register as a sex offender for life and an adult convicted of misdemeanor solicitation of an adult or minor to give a sample to the DNA databank.

Existing law provides that the Department of Justice (DOJ), through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code, § 295 (g).)

Existing law provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Penal Code § 295.1 (a) & (b).)

Existing law provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:

• Forensic casework and forensic unknowns;
• Known and evidentiary specimens and samples from crime scenes or criminal investigations;
• Missing or unidentified persons;
• Persons required to provide specimens, samples, and print impressions;
• Legally obtained samples; and
• Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (Penal Code § 295.1)

Existing law specifies that the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected send them promptly to the DOJ.(Penal Code § 298.)

Existing law requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)

Existing law provides any person arrested for or charged with a felony and any person required to register as a sex offender or arsonist shall be required to submit buccal swab samples, a full palm print impression of each hand and any blood specimens or other biological samples required for submission to the DNA databank. (Penal Code § 296)

Existing law makes it a misdemeanor for an individual to solicit, or agree to engage in, or engage in, any act of prostitution with another person who is 18 years of age or older in exchange for the individual providing compensation, money, or anything of value to the other person. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by another person who is 18 years of age or older to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in an act of prostitution. (Penal Code § 647 (b)(2))

Existing law makes it a misdemeanor for an individual to solicit, or who agree to engage in, or engage in, any act of prostitution with another person who is a minor in exchange for the individual providing compensation, money, or anything of value to the minor. An individual agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation by someone who is a minor to so engage, regardless of whether the offer or solicitation was made by a minor who also possessed the specific intent to engage in an act of prostitution. (Penal Code § 647 (b)(3))

This bill provides that a person convicted of Penal Code 647 (b)(2) or (3), excluding a juvenile must submit the required samples to be included in the DNA databank.

Existing law generally requires persons convicted of enumerated sex offenses to register within five working days of coming into a city or county, with specified law enforcement officials in the city, county or city and county where he or she is domiciled, as specified.1 (Penal Code § 290.) Existing law provides that registration generally must be updated annually, within five working days of a registrant’s birthday. (Penal Code § 290.012(a).) In some instances, registration must be updated once every 30 or 90 days, as specified. (Penal Code §§ 290.011, 290.012.)

This bill provides that an adult convicted of Penal Code 647 (b) or (3) must register as a sex offender for life.

COMMENTS

1. Need for This Bill

According to the author:

Buyers of sex, or Johns, perpetuate sex trafficking by creating a demand for it. Although there have been efforts to protect these minors, not enough has been done to address those that perpetuate this system. Research shows a correlation between the sexual exploitation by Johns and other violent crimes they commit.

In 2006, a data analysis by the Oakland Police Department’s Special Victims Unit (SVU) found that the vast majority of Oakland’s unsolved homicides also involved victims who were or suspected to be engaged in prostitution activity. Of nearly 200 unsolved homicides in Oakland, 85 percent of these cases involved the victim being a prostitute. Furthermore, during 2014-2015, 2,610 women and girls were arrested or rescued from prostitution, of which 10 percent were minors.

This is not a problem limited to Oakland. Of the 245 Johns arrested in Oakland in 2014-2015, only one-third were Oakland residents, according to the Oakland Police Department. The remaining two-thirds of those arrested came from 52 other cities across the Bay Area and state, including seven counties outside of Alameda County. A handful came from three other states. This requires a statewide response.

2. Register as a Sex Offender

This bill would require any person who solicits a minor for prostitution to register as a sex offender. This includes a minor who solicits another minor.

Sex or sex acts with a minor can already be charged as a number of offenses that already requires registration. Would having a person register as a sex offender for this offense discourage prosecutors from charging the more serious offenses?

Penal Code 647 (b)(3) does not require the person to actually know that the individual they are soliciting is under 18. Should a person who unknowingly solicits a person under 18 for prostitution be required to register as a sex offender for life and all the consequences that come with registration?

Should a minor who solicits another minor as a prostitute be required to register as a sex offender for life and suffer all the consequences that come with registration?

3. DNA Databank

This bill would provide that any adult who is convicted of solicitation of a minor or adult be required to give his or her DNA to the DNA databank.

The profile derived from a DNA sample is uploaded into the state's DNA databank, which is part of the national Combined DNA Index System (CODIS), and can be accessed by local, state and federal law enforcement agencies and officials. When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a "hit," the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. CODIS also performs weekly searches of the entire system. In CODIS, the profile does not include the name of the person from whom the DNA was collected or any case-related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. CODIS is also the name of the related computer software program. CODIS's national component is the National DNA Index System (NDIS), the receptacle for all DNA profiles submitted by federal, state, and local forensic laboratories. DNA profiles typically originate at the Local DNA Index System (LDIS), then migrate to the State DNA Index System (SDIS), containing forensic profiles analyzed by local and state laboratories, and then to NDIS.

The only misdemeanors in the DNA databank are those sex offense misdemeanors for which registration is required. These offenses are forcible sex offenses or a person is guilty because the person is a minor and can’t consent. Is it appropriate to require an adult who solicits another adult in act of prostitution to give his or her DNA to the databank? Is this the type of misdemeanor offense that should be included in the databank? This bill requires only those who solicit a minor to be required to register so those people would already be required to give DNA as a 290 registrant, which would make this section duplicative for those offenders.

4. Support

In support the Alameda County District Attorney states:

Buyers of sex, perpetuate sex trafficking by creating a demand for it. Although there have been efforts to protect minors, not enough has been done to address those that perpetuate this system. As long as there is demand, there will be an exploiter to fill it. Individuals who purchase human beings for sex fuel the market that traffickers supply with victims. Until we eliminate the demand, the sex exploitation of our society’s most vulnerable girls, women and men and boys, will continue.

5. Opposition

In opposition the ACLU notes:

The sex offender registration requirements of this bill will place a disproportionate burden on low-income communities of color and LGBTQ communities. In California, people who are required to register as sex offenders are currently required to do so for the remainder of their natural lives. This is true regardless of their individual circumstances or the nature of the crime for which they were convicted. People deemed “transient,” meaning they do not have a stable residence, are required to register every 30 days and face criminal charges if they fail to do so. In addition to potential criminal charges for technical violations of the registration laws, the social consequences of registration can place already disadvantaged communities at greater disadvantage. For instance, inclusion on sex offender registries can make it more difficult to get a job, find housing, parent and rehabilitate. Inclusion on registries can be destabilizing in other ways as well, causing some people to fall into depression and exacerbating other mental health conditions.

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Given the wealth gaps and disparate criminal justice system treatment low-income people of color and LGBTQ people already face, as well as the higher increases of mental illness in these populations due to various forms of trauma—including trauma based on racism, homophobia, and transphobia—a bill that will disproportionately require people from these communities to register on account of a solicitation conviction will only continue to widen the gaps.

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Given that low-income people of color and LGBTQ people are stopped, arrested, and convicted for the crimes in SB 757 at higher rates than higher income people, whites, and non-LGBTQ people, respectively, it follows that they will also be disproportionately impacted by the negative consequences of DNA collection and sex offender registration requirements, thus further widening the disparities plaguing our criminal justice system.

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