Date of Hearing: April 2, 2019

Counsel: David Billingsley

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 786

Author:(Kiley) – As Introduced Ver:February 20, 2019

SUMMARY:

Adds the crime of human trafficking, as specified, to the list of violent felonies and makes it a "strike" under California's Three Strikes Law. Specifically, this bill:

1. Makes it a violent felony to commit the crime of human trafficking by depriving the personal liberty of another with the intent to commit specified crimes including pimping, pandering, or child pornography.
   
2. Makes it a violent felony to commit the crime of human trafficking by persuading or attempting to persuade a minor engage in a commercial sex act, with the intent to commit specified crimes including pimping, pandering, or child pornography.
   
3. Makes the above offenses “strikes” for purposes of California’s Three Strikes Law.
   
4. Finds and declares that the violent offenses, as specified, merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person.

EXISTING LAW:

1. Defines a "violent felony" as any of the following (Pen. Code § 667.5(c).):
   
   1. Murder or voluntary manslaughter;
      
   2. Mayhem;
      
   3. Rape or spousal rape accomplished by means of force or threats of retaliation;
      
   4. Sodomy by force or fear of immediate bodily injury on the victim or another person;
      
   5. Oral copulation by force or fear of immediate bodily injury on the victim or another person;
      
   6. Lewd acts on a child under the age of 14 years, as defined;
      
   7. Any felony punishable by death or imprisonment in the state prison for life;
      
   8. Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, or any felony in which the defendant has used a firearm, as specified;
      
   9. Any robbery;
      
   10. Arson of a structure, forest land, or property that causes great bodily injury;
       
   11. Arson that causes an inhabited structure or property to burn;
       
   12. Sexual penetration accomplished against the victim's will by means of force, menace or fear of immediate bodily injury on the victim or another person;
       
   13. Attempted murder;
       
   14. Explosion or attempted explosion of a destructive device with the intent to commit murder;
       
   15. Explosion or ignition of any destructive device or any explosive which causes bodily injury to any person;
       
   16. Explosion of a destructive device which causes death or great bodily injury;
       
   17. Kidnapping;
       
   18. Assault with intent to commit mayhem, rape, sodomy or oral copulation;
       
   19. Continuous sexual abuse of a child;
       
   20. Carjacking, as defined;
       
   21. Rape or penetration of genital or anal openings by a foreign object;
       
   22. Felony extortion;
       
   23. Threats to victims or witnesses, as specified;
       
   24. First degree burglary, as defined, where it is proved that another person other than an accomplice, was present in the residence during the burglary;
       
   25. Use of a firearm during the commission of specified crimes; and,
       
   26. Possession, development, production, and transfers of weapons of mass destruction.
       
2. Provides that when a defendant is convicted on a new felony offense and has a prior conviction for a specified violent felony, the defendant shall receive a consecutive three-year term for each prior separate prison term served by the defendant where the prior offense was one of the specified violent felonies specified, unless the defendant meets certain conditions. (Pen. Code § 667.5, subd. (a).)
   
3. States that a conviction of a violent felony counts as a prior conviction for sentencing under the two and three strikes law. (Pen. Code § 667.)
   
4. Specifies all references to existing statutes in specified portions of the Three Strikes Law, are to statutes as they existed on November 7, 2012. (Pen. Code § 667, subd. (h).)
   
5. Provides that if a defendant is convicted of a felony offense and it is pled and proved that the defendant has been convicted of one prior serious or violent offense as defined, the term of imprisonment is twice the term otherwise imposed for the current offense. (Pen. Code § 667.)
   
6. States that a person who deprives or violates the personal liberty of another with the intent to commit specified crimes including pimping, pandering, or child pornography, is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than $500,000. (Pen. Code, § 236.1, subd. (b).)
   
7. Specifies that a person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to commit specified crimes including pimping, pandering, or child pornography, is guilty of human trafficking. States that such a violation is punishable by imprisonment in the state prison as follows:
   
   1. Five, 8, or 12 years and a fine of not more than $500,000; or
      
   2. Fifteen years to life and a fine of not more than $500,000 when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person. (Pen. Code, § 236.1, subd. (c).)
      
8. States that any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. (Cal. Const., Art. I, § 32.)
   
9. Specifies that CDCR shall have authority to award credits earned for good behavior and approved rehabilitative or educational achievements. (Cal. Const., Art. I, § 32.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, "Human trafficking ranks among the fastest growing crimes in California. However, even the most egregious forms of human trafficking involving sex acts and the coercion of children for sex acts, are not considered a serious or violent felony. This means that offenders are eligible for early release and generally lighter sentences. AB 786 would protect our communities and provide justice to victims by making the worst forms of human trafficking a violent felony.
   
2. "Violent" Felony Designation: This bill would add human trafficking, as specified, to the list of "violent" crimes that causes an offender to receive fewer custody credits toward release on parole. Inmates who receive convictions for violent felonies must serve 80% of their time in custody. Existing law also imposes an additional one-year term for a felony and a three-year term for a violent felony for each prior separate prison term served for a violent felony.
   
   The crimes of human trafficking addressed by this bill already carry very steep sentences.
   A defendant convicted of human trafficking by depriving the personal liberty of another with the intent to commit specified crimes including pimping, pandering, or child pornography, shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than $500,000. A defendant convicted of human trafficking by persuading or attempting persuade, a person who is a minor to engage in a commercial sex act, with the intent to commit specified crimes including pimping, pandering, or child pornography punishable by imprisonment in the state prison by 15 years to life and a fine of not more than $500,000 when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person.
   
3. Three Strikes Implications: In general, violent felonies as specified in Penal Code 667.5 are considered "strikes" for purposes of California's Three Strikes law. However, Proposition 36, which was passed by California voters on November 6, 2012 specifies that only the crimes that were included in the "violent felonies" list prior to November 7, 2016 shall be treated as strikes for purposes of the Three Strikes law.

"Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after November 7, 2012, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667 (Three Strikes Law), are to those statutes as they existed on November 7, 2012." (Pen. Code § 667.1.)

This bill would make human trafficking a "strike" under California law because the bill would amend the date which defines the list of strikes to include the provisions of this bill. A person that has a conviction for a “strike” faces increased prison time for any future felony conviction. Any future felony conviction when a person has a prior conviction for a single strike results in a doubling of the prison sentence and can trigger additional enhancements. A person, with two prior convictions for strikes can face a 25-to life sentence for a felony conviction, if certain criteria are met.

1. Prison Overcrowding:   In January 2010, a three-judge panel issued a ruling ordering the State of California to reduce its prison population to 137.5% of design capacity because overcrowding was the primary reason that CDCR was unable to provide inmates with constitutionally adequate healthcare.  (Coleman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK JFM P/NO. C01-1351 THE.)  The United State Supreme Court upheld the decision, declaring that “without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill” inmates in California’s prisons.  (Brown v. Plata (2011) 131 S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.) 
   
   After continued litigation, on February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:  143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and, 137.5% of design bed capacity by February 28, 2016.
   
   CDCR’s February 2018 monthly report on the prison population notes that the in-state adult institution population is currently 113,656 inmates, which is under, but still close to the limit of 137.5 of design capacity. This is a decrease of .2% from January 31st of last year. 

(https://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Monthly/TPOP1A/TPOP1Ad1902.pdf)

Thus, while CDCR is currently in compliance with the three-judge panel’s order on the prison population, the state needs to maintain a “durable solution” to prison overcrowding “consistently demanded” by the court.  (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14).)

The provisions of this bill not only specify that anyone convicted of human trafficking as a violent felonies would have to reduced credits (20% credits) for their sentence while in custody, but the bill would also make human trafficking a "strike" which triggers longer sentencing for any felony conviction in the future.

1. Proposition 57: On November 8, 2016 the voters of California approved Proposition 57. Proposition 57 was known as the "Parole for Non-Violent Criminals and Juvenile Court Trial Requirements Initiative." The initiative allows parole consideration for non-violent felons. It also authorized sentence credits for rehabilitation, good behavior, and education. Additionally the proposition provides juvenile court judge decides whether juvenile will be prosecuted as adult.

As a result of the initiative, a process was established to allow Board of Parole Hearings to consider parole for state prison inmates convicted of “non-violent” offenses once they have completed the full term of his or her primary offense (longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.) Proposition 57 has not been fully litigated in the courts, but non-violent offenses for purposes of Proposition 57 has been interpreted to include all offenses that are not on the list of violent offenses in Penal Code 667.5. If this bill becomes law, human trafficking will be a defined as a violent offense under Penal Code 667.5, and presumably an individual convicted of human trafficking and serving a state prison sentence would not be eligible for parole under Proposition 57. It is unclear if such a change would apply to individuals in state prison on human trafficking convictions prior to the passage of Proposition 57. It is also unclear if the language of Proposition 57 regarding “violent offenses” would be found by the courts to apply only to the list of “violent offenses” in place at the time that Proposition 57 was enacted.

1. Argument in Support: According to the California Police Chiefs Association, “Existing law imposes a minimum sentence of 8 years and a maximum sentence of 20 years on those individuals who are convicted of trafficking adults; however, for trafficking a minor, the minimum sentence is 5 years and the max is 12 years. AB 786 recognizes human trafficking as an egregious crime and amends its classification from a simple to a violent felony so that the trafficker may receive the appropriate sentence. According to the National Human Trafficking Hotline, there were 5,147 reported cases of human trafficking in California in 2018 – roughly 1,400 of those cases involved minors. This bill will assist in holding predators accountable for their crimes and prevent further and minors from becoming victims of human trafficking.
   
   
2. Argument in Opposition: According to the California Public Defenders Association, "This bill is partly duplicative because violation of Penal Code section 236.1, subdivision (c), is punishable by life in prison, under section 236.1, subdivision (c)(2), “if the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person.” – as must violations of section 2361, subdivision (c) do – is punishable by fifteen years to life. But under already existing Penal Code section 667.5, subdivision (c)(7), any felony punishable by life in prison is already a violent felony.
   
   This bill is completely unnecessary because the penalty for violation of Penal Code section 236.1, subdivision (b) and (c) is already quite severe. Violation of subdivision (b) is 8, 14, or 20 years, and a fine of up to $500.000. Violation of subdivision (c)(2) is, already mentioned, 15 to life, while violation of subdivision (c)(1) is 5, 8, or 12 years in prison and a fine of up to $500,000.
   
   There is no reason to believe that those already harsh punishments are not adequate already to deter and to punish, and there is reason to believe that increasing those punishments would have any further deterrent effect.
   
   Increasing the punishments for those crimes would, however, guarantee that prison overcrowding would persist far into the future prolonging the extra expense and federal oversight of our prisons to no purpose.
   
3. Prior Legislation:
   
   1. AB 197 (Kiley), of the 2017-2018 Legislative Session, would have added several offenses to the list of violent felonies and specifies that they are "strikes" under California's Three-Strikes Law. AB 197 was never heard in the Assembly Public Safety Committee.
      
   2. AB 67 (Rodriguez), of the 2017-2018 Legislative Session, would have added human sex trafficking and specified sexual assault offenses to the list of violent. AB 67 was held on Suspense File in the Assembly Appropriations Committee.
      
   3. AB 27 (Melendez), of the 2017-2018 Legislative Session, would have added specified sexual assault offenses to the list of violent felonies codified in the Penal Code. AB 27 was held on Suspense File in the Assembly Appropriations Committee.
      
   4. SB 75 (Bates), of the 2017-2018 Legislative Session, would have added vehicular manslaughter, human trafficking involving a minor, assault with a deadly weapon, solicitation of murder, rape under various specified circumstances, and grand theft of a firearm as violent felonies for purposes of imposing specified sentence enhancements. SB 75 was held in the Senate Public Safety Committee.
      
   5. SB 652 (Nielsen), of the 2017-2018 Legislative Session, would have defined the unlawful possession of a firearm by a person previously convicted of a violent felony. SB 652 was held in the Senate Public Safety Committee.
      
   6. SB 770 (Glazier), of the 2017-2018 Legislative Session, would have added human trafficking, elder and dependent adult abuse, assault with a deadly weapon, rape under specified circumstances, discharge of a firearm at an occupied building, and specified crimes against peace officers and witnesses, as violent felonies. SB 770 held in the Senate Public Safety Committee.
      
   7. SB 1269 (Galgiani), of the 2015-2016 Legislative Session, would have included human trafficking in the list of violent felonies, for which Three Strike sentencing, sentencing credit limits, enhancements for prior violent felony prison terms and other consequences apply. SB 1269 failed passage in the Senate Public Safety Committee.
      

REGISTERED SUPPORT / OPPOSITION:

Support

California Peace Officers Association
California Police Chiefs Association
Riverside Sheriffs' Association

Oppose

American Civil Liberties Union of California
California Public Defenders Association

Analysis Prepared by:

David Billingsley / PUB. S. / (916) 319-3744