Bill Text: CA AB336 | 2013-2014 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Crimes: prostitution: evidence.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2014-09-18 - Chaptered by Secretary of State - Chapter 403, Statutes of 2014. [AB336 Detail]

Download: California-2013-AB336-Amended.html

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BILL NUMBER: AB 336	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MAY 29, 2013
	AMENDED IN ASSEMBLY  MAY 8, 2013

INTRODUCED BY   Assembly Member Ammiano

                        FEBRUARY 13, 2013

   An act to  amend Sections 647 and 653.22 of  
add Section 782.1 to the  Penal   Evidence
 Code, relating to crimes.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 336, as amended, Ammiano. Crimes: prostitution: evidence. 
   Existing law requires that in any of specified circumstances,
including, but not limited to, rape, unlawful sexual incourse, or
sodomy, if evidence of sexual conduct of the complaining witness is
offered to attack the credibility of the complaining witness,
specified procedures be followed. Existing law includes, among those
procedures, a requirement that a written motion be made by the
defendant to the court and prosecutor stating that the defense has an
offer of proof of the relevancy of evidence of the sexual conduct of
the complaining witness proposed to be presented and its relevancy
in attacking the credibility of the complaining witness. Existing law
requires the written motion to be accompanied by an affidavit, filed
and sealed, in which the offer of proof is stated. Existing law
requires if the court finds that the offer of proof is sufficient,
the court to order a hearing out of the presence of the jury, if any,
and at the hearing allow the questioning of the complaining witness
regarding the offer of proof made by the defendant. Existing law
permits at the conclusion of the hearing, if the court finds that
evidence proposed to be offered by the defendant regarding the sexual
conduct of the complaining witness is relevant and is not found
inadmissible, the court to make an order stating what evidence may be
introduced by the defendant, and the nature of the questions to be
permitted. Existing law states that the defendant may then offer that
specified evidence pursuant to the order of the court.  
   This bill would require that in any prosecution for committing an
act of disorderly conduct or for loitering in any public place with
the intent to commit prostitution, if the possession of one or more
condoms is to be introduced as evidence in support of the commission
of the crime, specified procedures be followed that are similar to
existing law, except that the written motion would be made by the
prosecutor to the court and to the defendant stating that the
prosecution has an offer of proof of the relevancy of the possession
by the defendant of one or more condoms. The bill would permit, at
the conclusion of the hearing, if the court finds that evidence
proposed to be offered by the prosecutor regarding the possession of
condoms is relevant and is not inadmissible, the court to make an
order stating what evidence may be introduced by the prosecutor. The
bill would then permit the prosecutor to offer that specified
evidence pursuant to the order of the court.  
   Under existing law, a person is guilty of disorderly conduct, a
misdemeanor, based on various acts, including when a person solicits
or agrees to engage in or engages in any act of prostitution, as
specified. Existing also law makes it unlawful for any person to
loiter in any public place with the intent to commit prostitution
and, in determining whether a person has violated this provision,
permits consideration of circumstances including, but not limited to,
that the person repeatedly beckons to, stops, engages in
conversations with, or attempts to stop or engage in conversations
with, passersby, indicative of soliciting for prostitution. 

   This bill would, for purposes of both crimes, exclude the
possession of one of more condoms as evidence of a violation of that
crime.  
   The California Constitution provides for the Right to Truth in
Evidence that requires a 2/3 vote of the Legislature to exclude any
relevant evidence from any criminal proceeding, as specified.
 
   Because this bill would exclude possession of one or more condoms
as evidence of crimes, it requires a 2/3 vote of the Legislature.

   Vote:  2/3   majority  . Appropriation:
no. Fiscal committee: no. State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 782.1 is added to the 
 Evidence Code   , to read:  
   782.1.  In any prosecution under Sections 647 and 653.22 of the
Penal Code, if the possession of one or more condoms is to be
introduced as evidence in support of the commission of the crime, the
following procedure shall be followed:
   (a) A written motion shall be made by the prosecutor to the court
and to the defendant stating that the prosecution has an offer of
proof of the relevancy of the possession by the defendant of one or
more condoms.
   (b) The written motion shall be accompanied by an affidavit in
which the offer of proof shall be stated. The affidavit shall be
filed under seal and only unsealed by the court to determine if the
offer of proof is sufficient to order a hearing pursuant to
subdivision (c). After that determination, the affidavit shall be
resealed by the court.
   (c) If the court finds that the offer of proof is sufficient, the
court shall order a hearing out of the presence of the jury, if any,
and at the hearing allow questioning regarding the offer of proof
made by the prosecution.
   (d) At the conclusion of the hearing, if the court finds that
evidence proposed to be offered by the prosecutor regarding the
possession of condoms is relevant pursuant to Section 210, and is not
inadmissible pursuant to Section 352, the court may make an order
stating what evidence may be introduced by the prosecutor. The
prosecutor may then offer evidence pursuant to the order of the
court.
   (e) An affidavit resealed by the court pursuant to subdivision (b)
shall remain sealed, unless the defendant raises an issue on appeal
or collateral review relating to the offer of proof contained in the
sealed document. If the defendant raises that issue on appeal, the
court shall allow the Attorney General and appellate counsel for the
defendant access to the sealed affidavit. If the issue is raised on
collateral review, the court shall allow the district attorney and
defendant's counsel access to the sealed affidavit. The use of the
information contained in the affidavit shall be limited solely to the
pending proceeding.  
  SECTION 1.    Section 647 of the Penal Code is
amended to read:
   647.  Except as provided in subdivision (l), every person who
commits any of the following acts is guilty of disorderly conduct, a
misdemeanor:
   (a) Who solicits anyone to engage in or who engages in lewd or
dissolute conduct in any public place or in any place open to the
public or exposed to public view.
   (b) Who solicits or who agrees to engage in or who engages in any
act of prostitution. A person 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 to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution. No
agreement to engage in an act of prostitution shall constitute a
violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the commission
of an act of prostitution by the person agreeing to engage in that
act. Possession of one or more condoms shall not be used as evidence
of a violation of this subdivision. As used in this subdivision,
"prostitution" includes any lewd act between persons for money or
other consideration.
   (c) Who accosts other persons in any public place or in any place
open to the public for the purpose of begging or soliciting alms.
   (d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.
   (e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.
   (f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.
   (g) When a person has violated subdivision (f), a peace officer,
if he or she is reasonably able to do so, shall place the person, or
cause him or her to be placed, in civil protective custody. The
person shall be taken to a facility, designated pursuant to Section
5170 of the Welfare and Institutions Code, for the 72-hour treatment
and evaluation of inebriates. A peace officer may place a person in
civil protective custody with that kind and degree of force which
would be lawful were he or she effecting an arrest for a misdemeanor
without a warrant. No person who has been placed in civil protective
custody shall thereafter be subject to any criminal prosecution or
juvenile court proceeding based on the facts giving rise to this
placement. This subdivision shall not apply to the following persons:

   (1) Any person who is under the influence of any drug, or under
the combined influence of intoxicating liquor and any drug.
   (2) Any person who a peace officer has probable cause to believe
has committed any felony, or who has committed any misdemeanor in
addition to subdivision (f).
   (3) Any person who a peace officer in good faith believes will
attempt escape or will be unreasonably difficult for medical
personnel to control.
   (h) Who loiters, prowls, or wanders upon the private property of
another, at any time, without visible or lawful business with the
owner or occupant. As used in this subdivision, "loiter" means to
delay or linger without a lawful purpose for being on the property
and for the purpose of committing a crime as opportunity may be
discovered.
   (i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of any
inhabited building or structure, without visible or lawful business
with the owner or occupant.
   (j) (1) Any person who looks through a hole or opening, into, or
otherwise views, by means of any instrumentality, including, but not
limited to, a periscope, telescope, binoculars, camera, motion
picture camera, camcorder, or mobile phone, the interior of a
bedroom, bathroom, changing room, fitting room, dressing room, or
tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the intent to
invade the privacy of a person or persons inside. This subdivision
shall not apply to those areas of a private business used to count
currency or other negotiable instruments.
   (2) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person under or through the clothing being worn by that
other person, for the purpose of viewing the body of, or the
undergarments worn by, that other person, without the consent or
knowledge of that other person, with the intent to arouse, appeal to,
or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in which
the other person has a reasonable expectation of privacy.
   (3) (A) Any person who uses a concealed camcorder, motion picture
camera, or photographic camera of any type, to secretly videotape,
film, photograph, or record by electronic means, another,
identifiable person who may be in a state of full or partial undress,
for the purpose of viewing the body of, or the undergarments worn
by, that other person, without the consent or knowledge of that other
person, in the interior of a bedroom, bathroom, changing room,
fitting room, dressing room, or tanning booth, or the interior of any
other area in which that other person has a reasonable expectation
of privacy, with the intent to invade the privacy of that other
person.
   (B) Neither of the following is a defense to the crime specified
in this paragraph:
   (i) The defendant was a cohabitant, landlord, tenant, cotenant,
employer, employee, or business partner or associate of the victim,
or an agent of any of these.
   (ii) The victim was not in a state of full or partial undress.
   (k) (1) In any accusatory pleading charging a violation of
subdivision (b), if the defendant has been once previously convicted
of a violation of that subdivision, the previous conviction shall be
charged in the accusatory pleading. If the previous conviction is
found to be true by the jury, upon a jury trial, or by the court,
upon a court trial, or is admitted by the defendant, the defendant
shall be imprisoned in a county jail for a period of not less than 45
days and shall not be eligible for release upon completion of
sentence, on probation, on parole, on work furlough or work release,
or on any other basis until he or she has served a period of not less
than 45 days in a county jail. In all cases in which probation is
granted, the court shall require as a condition thereof that the
person be confined in a county jail for at least 45 days. In no event
does the court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 45 days in
confinement in a county jail.
   (2) In any accusatory pleading charging a violation of subdivision
(b), if the defendant has been previously convicted two or more
times of a violation of that subdivision, each of these previous
convictions shall be charged in the accusatory pleading. If two or
more of these previous convictions are found to be true by the jury,
upon a jury trial, or by the court, upon a court trial, or are
admitted by the defendant, the defendant shall be imprisoned in a
county jail for a period of not less than 90 days and shall not be
eligible for release upon completion of sentence, on probation, on
parole, on work furlough or work release, or on any other basis until
he or she has served a period of not less than 90 days in a county
jail. In all cases in which probation is granted, the court shall
require as a condition thereof that the person be confined in a
county jail for at least 90 days. In no event does the court have the
power to absolve a person who violates this subdivision from the
obligation of spending at least 90 days in confinement in a county
jail.
   (3) In addition to any punishment prescribed by this section, a
court may suspend, for not more than 30 days, the privilege of the
person to operate a motor vehicle pursuant to Section 13201.5 of the
Vehicle Code for any violation of subdivision (b) that was committed
within 1,000 feet of a private residence and with the use of a
vehicle. In lieu of the suspension, the court may order a person's
privilege to operate a motor vehicle restricted, for not more than
six months, to necessary travel to and from the person's place of
employment or education. If driving a motor vehicle is necessary to
perform the duties of the person's employment, the court may also
allow the person to drive in that person's scope of employment.
   (l) (1) A second or subsequent violation of subdivision (j) is
punishable by imprisonment in a county jail not exceeding one year,
or by a fine not exceeding two thousand dollars ($2,000), or by both
that fine and imprisonment.
   (2) If the victim of a violation of subdivision (j) was a minor at
the time of the offense, the violation is punishable by imprisonment
in a county jail not exceeding one year, or by a fine not exceeding
two thousand dollars ($2,000), or by both that fine and imprisonment.
 
  SEC. 2.    Section 653.22 of the Penal Code is
amended to read:
   653.22.  (a) It is unlawful for any person to loiter in any public
place with the intent to commit prostitution. This intent is
evidenced by acting in a manner and under circumstances that openly
demonstrate the purpose of inducing, enticing, or soliciting
prostitution, or procuring another to commit prostitution.
   (b) Among the circumstances that may be considered in determining
whether a person loiters with the intent to commit prostitution are
that the person:
   (1) Repeatedly beckons to, stops, engages in conversations with,
or attempts to stop or engage in conversations with passersby,
indicative of soliciting for prostitution.
   (2) Repeatedly stops or attempts to stop motor vehicles by hailing
the drivers, waving arms, or making any other bodily gestures, or
engages or attempts to engage the drivers or passengers of the motor
vehicles in conversation, indicative of soliciting for prostitution.
   (3) Has been convicted of violating this section, subdivision (a)
or (b) of Section 647, or any other offense relating to or involving
prostitution, within five years of the arrest under this section.
   (4) Circles an area in a motor vehicle and repeatedly beckons to,
contacts, or attempts to contact or stop pedestrians or other
motorists, indicative of soliciting for prostitution.
   (5) Has engaged, within six months prior to the arrest under this
section, in any behavior described in this subdivision, with the
exception of paragraph (3), or in any other behavior indicative of
prostitution activity.
   (c) The list of circumstances set forth in subdivision (b) is not
exclusive. The circumstances set forth in subdivision (b) should be
considered particularly salient if they occur in an area that is
known for prostitution activity. Any other relevant circumstances may
be considered in determining whether a person has the requisite
intent. Moreover, no one circumstance or combination of circumstances
is in itself determinative of intent. Intent must be determined
based on an evaluation of the particular circumstances of each case.
   (d) Possession of one or more condoms shall not be used as
evidence of a violation of this section.