Bill Text: CA AB17 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Human trafficking.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 211, Statutes of 2009. [AB17 Detail]
Download: California-2009-AB17-Amended.html
Bill Title: Human trafficking.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 211, Statutes of 2009. [AB17 Detail]
Download: California-2009-AB17-Amended.html
BILL NUMBER: AB 17 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 22, 2009
INTRODUCED BY Assembly Member Swanson
DECEMBER 1, 2008
An act to add Sections 266m and 266n to the Penal Code,
relating to sex offenses, declaring the urgency thereof, to take
effect immediately. An act to amend Sections 186.2,
266k, and 13837 of the Penal Code, relating to human trafficking.
LEGISLATIVE COUNSEL'S DIGEST
AB 17, as amended, Swanson. Prostitution: solicitation,
pimping, and pandering. Human trafficking.
Under existing law, a person who is convicted of human trafficking
where the victim is under 18 years of age is punishable by
imprisonment in the state prison. A person convicted of soliciting or
agreeing to engage in an act of prostitution is guilty of a
misdemeanor, punishable by imprisonment in the county jail for up to
6 months and a fine of up to $1,000. Under existing law, a person who
is convicted of pimping, pandering, or procurement of a child under
16 years of age is guilty of a felony, punishable by imprisonment in
the state prison and a fine of up to $15,000. In addition, under
existing law, the court may impose a fine of up to $5,000 on a person
convicted of pimping, pandering, or procuring a child under 16 years
of age for any of those purposes, the proceeds of which are
deposited into the Victim-Witness Assistance Fund, to be made
available to child sexual exploitation and child sexual abuse victim
counseling centers and prevention programs.
This bill would require a court to impose upon any person who
solicits another person to engage in an act of prostitution in return
for money or other consideration or who agrees to give another
person money or other consideration in return for the other person
committing an act of prostitution, in addition to any punishment
prescribed or fine imposed under other applicable provisions, a fine
of no less than $250 and no more than $2,500 per conviction, as
determined by the court. The bill would also require a court to
impose upon any person who is convicted of pimping, pandering, or
procuring of a child under 16 years of age, in addition to any other
punishment prescribed, a fine of no less than $2,500 and no more than
$250,000 per conviction, as determined by the court. In addition,
this bill would authorize the court to impound any personal property
used in the course of that unlawful conduct for a period of up to 60
days. If the person has previously been convicted of one of those
offenses, the court would be authorized to order any personal
property used in the course of committing the violation forfeited,
pursuant to specified procedures. If real property is used in a
violation of those provisions, the bill would apply to that property
existing provisions of law declaring property used for illegal
purposes to be a nuisance. By imposing additional duties on local
officials, this bill would create a state-mandated local program.
This bill would also require each county to establish a sexually
exploited minors fund into which shall be deposited the proceeds of
those additional fines imposed or forfeitures made pursuant to the
provisions of this bill from convictions in that county. Fifty
percent of the money in that fund would be available to local law
enforcement for the enforcement of specified crimes, and 50% would be
available to community-based organizations that assist sexually
exploited minors through prevention, education, counseling, job
training, and life skills programs.
This bill would authorize local law enforcement agencies to make
public or make available to media outlets the name and photograph of
any person who is convicted pursuant to the above provisions.
Existing law, the California Control of Profits of Organized Crime
Act, provides the procedure for the forfeiture of property acquired
through a pattern of criminal profiteering activity and for the
forfeiture of the proceeds of a pattern of criminal profiteering
activity, as specified, and requires the prosecution to file a
petition for forfeiture in conjunction with certain criminal charges.
Under existing law, criminal profiteering activity is defined to
include specified crimes.
This bill would include abduction or procurement by fraudulent
inducement for prostitution within the definition of criminal
profiteering activity, as specified.
Existing law authorizes the sentencing court to impose an
additional fine of up to $5,000 on any person convicted of pimping,
pandering, or procurement of a child under 16 years of age, as
specified.
This bill would increase the maximum amount of additional
authorized fine to $20,000, as specified.
Existing law requires the Office of Emergency Services to provide
grants to proposed and existing child sexual exploitation and child
sexual abuse victim counseling centers and prevention programs, as
specified.
This bill would require 50 percent of the funds granted to those
centers and programs to be granted to community-based organizations
that serve minor victims of human trafficking.
Because this bill would increase the penalty for an existing
crime, it would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3 majority . Appropriation:
no. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 186.2 of the Penal
Code is amended to read:
186.2. For purposes of this chapter, the following definitions
apply:
(a) "Criminal profiteering activity" means any act committed or
attempted or any threat made for financial gain or advantage, which
act or threat may be charged as a crime under any of the following
sections:
(1) Arson, as defined in Section 451.
(2) Bribery, as defined in Sections 67, 67.5, and 68.
(3) Child pornography or exploitation, as defined in subdivision
(b) of Section 311.2, or Section 311.3 or 311.4, which may be
prosecuted as a felony.
(4) Felonious assault, as defined in Section 245.
(5) Embezzlement, as defined in Sections 424 and 503.
(6) Extortion, as defined in Section 518.
(7) Forgery, as defined in Section 470.
(8) Gambling, as defined in Sections 337a to 337f, inclusive, and
Section 337i, except the activities of a person who participates
solely as an individual bettor.
(9) Kidnapping, as defined in Section 207.
(10) Mayhem, as defined in Section 203.
(11) Murder, as defined in Section 187.
(12) Pimping and pandering, as defined in Section 266.
(13) Receiving stolen property, as defined in Section 496.
(14) Robbery, as defined in Section 211.
(15) Solicitation of crimes, as defined in Section 653f.
(16) Grand theft, as defined in Section 487.
(17) Trafficking in controlled substances, as defined in Sections
11351, 11352, and 11353 of the Health and Safety Code.
(18) Violation of the laws governing corporate securities, as
defined in Section 25541 of the Corporations Code.
(19) Any of the offenses contained in Chapter 7.5 (commencing with
Section 311) of Title 9, relating to obscene matter, or in Chapter
7.6 (commencing with Section 313) of Title 9, relating to harmful
matter that may be prosecuted as a felony.
(20) Presentation of a false or fraudulent claim, as defined in
Section 550.
(21) False or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code.
(22) Money laundering, as defined in Section 186.10.
(23) Offenses relating to the counterfeit of a registered mark, as
specified in Section 350.
(24) Offenses relating to the unauthorized access to computers,
computer systems, and computer data, as specified in Section 502.
(25) Conspiracy to commit any of the crimes listed above, as
defined in Section 182.
(26) Subdivision (a) of Section 186.22, or a felony subject to
enhancement as specified in subdivision (b) of Section 186.22.
(27) Any offenses related to fraud or theft against the state's
beverage container recycling program, including, but not limited to,
those offenses specified in this subdivision and those criminal
offenses specified in the California Beverage Container Recycling and
Litter Reduction Act, commencing at Section 14500 of the Public
Resources Code.
(28) Human trafficking, as defined in Section 236.1.
(29) Theft of personal identifying information, as defined in
Section 530.5.
(30) Offenses involving the theft of a motor vehicle, as specified
in Section 10851 of the Vehicle Code.
(31) Abduction or procurement by fraudulent inducement for
prostitution, as defined in Section 266a.
(b) (1) "Pattern of criminal profiteering activity" means engaging
in at least two incidents of criminal profiteering, as defined by
this chapter, that meet the following requirements:
(A) Have the same or a similar purpose, result, principals,
victims, or methods of commission, or are otherwise interrelated by
distinguishing characteristics.
(B) Are not isolated events.
(C) Were committed as a criminal activity of organized crime.
(2) Acts that would constitute a "pattern of criminal profiteering
activity" may not be used by a prosecuting agency to seek the
remedies provided by this chapter unless the underlying offense
occurred after the effective date of this chapter and the prior act
occurred within 10 years, excluding any period of imprisonment, of
the commission of the underlying offense. A prior act may not be used
by a prosecuting agency to seek remedies provided by this chapter if
a prosecution for that act resulted in an acquittal.
(c) "Prosecuting agency" means the Attorney General or the
district attorney of any county.
(d) "Organized crime" means crime that is of a conspiratorial
nature and that is either of an organized nature and seeks to supply
illegal goods and services such as narcotics, prostitution,
loan-sharking, gambling, and pornography, or that, through planning
and coordination of individual efforts, seeks to conduct the illegal
activities of arson for profit, hijacking, insurance fraud,
smuggling, operating vehicle theft rings, fraud against the beverage
container recycling program, or systematically encumbering the assets
of a business for the purpose of defrauding creditors. "Organized
crime" also means crime committed by a criminal street gang, as
defined in subdivision (f) of Section 186.22. "Organized crime" also
means false or fraudulent activities, schemes, or artifices, as
described in Section 14107 of the Welfare and Institutions Code, and
the theft of personal identifying information, as defined in Section
530.5.
(e) "Underlying offense" means an offense enumerated in
subdivision (a) for which the defendant is being prosecuted.
SEC. 2. Section 266k of the Penal Code
is amended to read:
266k. (a) Upon the conviction of any person for a violation of
Section 266h, 266i, or 266j, the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed five thousand dollars ($5,000)
twenty thousand dollars ($20,0 00) . In setting
the amount of the fine, the court shall consider any relevant
factors including, but not limited to, the seriousness and gravity of
the offense and the circumstances of its commission, whether the
defendant derived any economic gain as the result of the crime, and
the extent to which the victim suffered losses as a result of the
crime. Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs under Section
13837.
(b) If the court orders a fine to be imposed pursuant to this
section, the actual administrative cost of collecting that fine, not
to exceed 2 percent of the total amount paid, may be paid into the
general fund of the county treasury for the use and benefit of the
county.
SEC. 3. Section 13837 of the Penal Code
is amended to read:
13837. (a) The OES shall provide grants to proposed and existing
child sexual exploitation and child sexual abuse victim counseling
centers and prevention programs , including programs for minor
victims of human trafficking . Grant recipients shall provide
appropriate in-person counseling and referral services during normal
business hours, and maintain other standards or services which shall
be determined to be appropriate by the advisory committee established
pursuant to Section 13836 as grant conditions. The advisory
committee shall identify the criteria to be utilized in awarding the
grants provided by this chapter before any funds are allocated.
In order to be eligible for funding pursuant to this chapter, the
centers shall demonstrate an ability to receive and make use of any
funds available from governmental, voluntary, philanthropic, or other
sources which may be used to augment any state funds appropriated
for purposes of this chapter. Each center receiving funds pursuant to
this chapter shall make every attempt to qualify for any available
federal funding.
State funds provided to establish centers shall be utilized when
possible, as determined by the advisory committee, to expand the
program and shall not be expended to reduce fiscal support from other
public or private sources. The centers shall maintain quarterly and
final fiscal reports in a form to be prescribed by the administering
agency. In granting funds, the advisory committee shall give priority
to centers which are operated in close proximity to medical
treatment facilities.
Fifty percent of the funds granted to recipients pursuant to this
section shall be granted to community based organizations that serve
minor victims of human trafficking.
(b) (1) It is the intent of the Legislature that a goal or purpose
of the OES shall be to ensure that all victims of sexual assault and
rape receive comprehensive, quality services, and to decrease the
incidence of sexual assault through school and community education
and prevention programs.
(2) The OES and the advisory committee established pursuant to
Section 13836 shall collaboratively administer sexual assault/rape
crisis center victim services programs and provide grants to proposed
and existing sexual assault services programs (SASPs) operating
local rape victim centers and prevention programs. All SASPs shall
provide the services in subparagraphs (A) to (G), inclusive, and to
the extent federal funding is made available, shall also provide the
service described in subparagraph (H). The OES shall provide
financial and technical assistance to SASPs in implementing the
following services:
(A) Crisis intervention, 24 hours per day, seven days per week.
(B) Followup counseling services.
(C) In-person counseling, including group counseling.
(D) Accompaniment services.
(E) Advocacy services.
(F) Information and referrals to victims and the general public.
(G) Community education presentations.
(H) Rape prevention presentations and self-defense programs.
(3) The funding process for distributing grant awards to SASPs
shall be administered as follows:
(A) The OES and the advisory committee established pursuant to
Section 13836 shall collaboratively adopt each of the following:
(i) The process and standards for determining whether to grant,
renew, or deny funding to any SASP applying or reapplying for funding
under the terms of the program.
(ii) For SASPs applying for grants under the RFP process described
in subparagraph (B), a system for grading grant applications in
relation to the standards established pursuant to clause (i), and an
appeal process for applications that are denied. A description of
this grading system and appeal process shall be provided to all SASPs
as part of the application required under the RFP process.
(iii) For SASPs reapplying for funding under the RFA process
described in subparagraph (D), a system for grading the performance
of SASPs in relation to the standards established pursuant to clause
(i), and an appeal process for decisions to deny or reduce funding. A
description of this grading system and appeal process shall be
provided to all SASPs receiving grants under this program.
(B) Grants for centers that have previously not been funded or
were not funded in the previous cycle shall be awarded as a result of
a competitive request for proposal (RFP) process. The RFP process
shall comply with all applicable state and federal statutes for
sexual assault/rape crisis center funding, and to the extent
possible, the response to the RFP shall not exceed 25 narrative
pages, excluding attachments.
(C) Grants shall be awarded to SASPs that propose to maintain
services previously granted funding pursuant to this section, to
expand existing services or create new services, or to establish new
sexual assault/rape crisis centers in underserved or unserved areas.
Each grant shall be awarded for a three-year term.
(D) SASPs reapplying for grants shall not be subject to a
competitive bidding grant process, but shall be subject to a request
for application (RFA) process. The RFA process for a SASP reapplying
for grant funds shall consist in part of an assessment of the past
performance history of the SASP in relation to the standards
established pursuant to subparagraph (A). The RFA process shall
comply with all applicable state and federal statutes for sexual
assault/rape crisis center funding, and to the extent possible, the
response to the RFA shall not exceed 10 narrative pages, excluding
attachments.
(E) Any SASP funded through this program in the previous grant
cycle shall be funded upon reapplication, unless its past performance
history fails to meet the standards established pursuant to clause
(i) of subparagraph (A).
(F) The OES shall conduct a minimum of one site visit every three
years for each agency funded to provide sexual assault/rape crisis
centers. The purpose of the site visit shall be to conduct a
performance assessment of, and provide subsequent technical
assistance for, each center visited. The performance assessment shall
include, but need not be limited to, a review of all of the
following:
(i) Progress in meeting program goals and objectives.
(ii) Agency organization and facilities.
(iii) Personnel policies, files, and training.
(iv) Recordkeeping, budgeting, and expenditures.
(v) Documentation, data collection, and client confidentiality.
(G) After each site visit conducted pursuant to subparagraph (F),
the OES shall provide a written report to the SASP summarizing the
performance of the SASP, any deficiencies noted, any corrective
action needed, and a deadline for corrective action to be completed.
The OES shall also develop a corrective action plan for verifying the
completion of any corrective action required. The OES shall submit
its written report to the SASP no more than 60 days after the site
visit. No grant under the RFA process shall be denied if the SASP did
not receive a site visit during the previous three years, unless the
OES is aware of criminal violations relative to the administration
of grant funding.
(H) SASPs receiving written reports of deficiencies or orders for
corrective action after a site visit shall be given no less than six
months' time to take corrective action before the deficiencies or
failure to correct may be considered in the next RFA process.
However, the OES shall have the discretion to reduce the time to take
corrective action in cases where the deficiencies present a
significant health or safety risk or when other severe circumstances
are found to exist. If corrective action is deemed necessary, and a
SASP fails to comply, or if other deficiencies exist that, in the
judgment of the OES, cannot be corrected, the OES shall determine,
using its grading system, whether continued funding for the SASP
should be reduced or denied altogether. If a SASP has been determined
to be deficient, the OES may, at any point during the SASP's funding
cycle following the expiration of the period for corrective action,
deny or reduce any further funding.
(I) If a SASP applies or reapplies for funding pursuant to this
section and that funding is denied or reduced, the decision to deny
or reduce funding shall be provided in writing to the SASP, along
with a written explanation of the reasons for the reduction or denial
made in accordance with the grading system for the RFP or RFA
process. Except as otherwise provided, any appeal of the decision to
deny or reduce funding shall be made in accordance with the appeal
process established by the OES. The appeal process shall allow a SASP
a minimum of 30 days to appeal after a decision to deny or reduce
funding. All pending appeals shall be resolved before final funding
decisions are reached.
(J) It is the intent of the Legislature that priority for
additional funds that become available shall be given to currently
funded, new, or previously unfunded SASPs for expansion of services.
However, the OES may determine when expansion is needed to
accommodate underserved or unserved areas. If supplemental funding is
unavailable, the OES shall have the authority to lower the base
level of grants to all currently funded SASPs in order to provide
funding for currently funded, new, or previously unfunded SASPs that
will provide services in underserved or unserved areas. However, to
the extent reasonable, funding reductions shall be reduced
proportionately among all currently funded SASPs. After the amount of
funding reductions has been determined, SASPs that are currently
funded and those applying for funding shall be notified of changes in
the available level of funding prior to the next application
process. Funding reductions made under this paragraph shall not be
subject to appeal.
(K) Notwithstanding any other provision of this section, the OES
may reduce funding to a SASP funded pursuant to this section if
federal funding support is reduced. Funding reductions as a result of
a reduction in federal funding shall not be subject to appeal.
(L) Nothing in this section shall be construed to supersede any
function or duty required by federal acts, rules, regulations, or
guidelines for the distribution of federal grants.
(M) As a condition of receiving funding pursuant to this section,
a SASP shall do each of the following:
(i) Demonstrate an ability to receive and make use of any funds
available from governmental, voluntary, philanthropic, or other
sources that may be used to augment any state funds appropriated for
purposes of this chapter.
(ii) Make every attempt to qualify for any available federal
funding.
(N) For the purposes of this paragraph, "sexual assault" means an
act or attempt made punishable by Section 220, 261, 261.5, 262,
264.1, 266c, 285, 286, 288, 288a, or 647.6.
(O) For the purposes of this paragraph, "sexual assault service
program" or "SASP" means an agency operating a sexual assault/rape
crisis center.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. This act shall be known, and may be
cited as, the Human Trafficking Accountability Act.
SEC. 2. Section 266m is added to the Penal
Code, to read:
266m. (a) (1) Any person who is convicted of a violation of
Section 647.5 shall be fined, in addition to any punishment or fine
prescribed in other applicable provisions, including Section 266k, no
less than two hundred fifty dollars ($250) and no more than two
thousand five hundred dollars ($2,500) per conviction, as determined
by the court.
(2) Any person who is convicted of a violation of Section 266h,
266i, 266j, or subdivision (c) of Section 236.1 shall be fined, in
addition to any punishment or fine prescribed in other applicable
provisions, including Sections 266h, 266i, 266j, and 266k, no less
than two thousand five hundred dollars ($2,500) and no more than two
hundred fifty thousand dollars ($250,000) per conviction, as
determined by the court.
(3) Upon conviction of an offense subjecting a person to a fine
pursuant to paragraph (1) or (2), the court may impound any personal
property used in the course of the unlawful conduct for a period of
up to 60 days. The owner of the property shall be responsible for all
fees and charges related to the impoundment. The impoundment
procedures set forth in Section 22659.5 of the Vehicle Code shall
apply to this section.
(b) If the person has previously been convicted of violating
Section 266h, 266i, 266j, or 647.5, the court may order any personal
property used in the course of committing the violation forfeited,
pursuant to the procedures in Section 502.01. If real property is
used, the procedures declaring the property to be a nuisance in
Article 2 (commencing with Section 11225) of Chapter 3 of Title 1 of
Part 4 shall apply.
(c) A local law enforcement agency may make public or may make
available to media outlets the name and photograph of any person who
is subject to this section.
SEC. 3. Section 266n is added to the Penal
Code, to read:
266n. (a) Each county shall establish a Sexually Exploited Minors
Fund into which shall be deposited the proceeds of any fines imposed
or forfeitures made pursuant to Section 266m from convictions in
that county. After the withdrawal of moneys pursuant to subdivision
(b), fifty percent of the money in that fund shall be available to
local law enforcement for the enforcement of crimes involving the
sexual exploitation of minors and fifty percent shall be available to
nonprofit community-based organizations that assist sexually
exploited minors through education, counseling, job training, and
life skills programs.
(b) Money in a county's Sexually Exploited Minors Fund may be used
to reimburse the county for the reasonable administrative costs
associated with the collection of a fine imposed pursuant to Section
266m, not to exceed 2 percent of the total amount paid.
SEC. 4. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because this act provides for offsetting savings to
local agencies or school districts that result in no net costs to the
local agencies or school districts, within the meaning of Section
17556 of the Government Code.
SEC. 5. This act is an urgency statute
necessary for the immediate preservation of the public peace, health,
or safety within the meaning of Article IV of the Constitution and
shall go into immediate effect. The facts constituting the necessity
are:
In order to protect minors in California from current and ongoing
crimes involving sexual exploitation it is necessary that this
legislation take effect immediately.
