Amended in Assembly March 15, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 1708

Introduced by Assembly Member Gonzalez

January 25, 2016

begin delete An act to amend Section 784.7 of the Penal Code, relating to crimes. end delete begin insert An act to amend Section 647 of, and to add Section 266m to, the Penal Code, relating to disorderly conduct. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 1708, as amended, Gonzalez. begin delete Criminal actions: venue. end delete begin insert Disorderly conduct: prostitution. end insert

begin insert

Existing law provides that a person who solicits or agrees to engage in or engages in any act of prostitution is guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines “prostitution” to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.

end insert begin insert

This bill would recast those provisions to distinguish between a person who commits prostitution by providing money or other consideration and a person who commits prostitution by receiving money or other consideration. The bill would provide that prostitution committed by receiving money or other consideration is not a crime for a person under 18 years of age and that it is an affirmative defense that a person engaged in the acts constituting the offense did so due to being a victim of human trafficking. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 72 hours in the county jail. The bill would expand the scope of prostitution involving soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution involving providing money or other consideration. The bill would require a person who commits prostitution involving soliciting a minor to serve a period of at least 72 hours in the county jail, and would prohibit the court from eliminating the mandatory minimum sentence. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. This bill would require those fines to be used by the county where the offense occurred for services for victims of human trafficking.

end insert begin insert

Existing law provides various penalties for human trafficking and sex trafficking offenses.

end insert begin insert

This bill would require a person convicted of a human trafficking offense, specified sex trafficking offenses, or certain felony human trafficking offenses, where any part of the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary school, vocational, junior high, or high school during the hours that the school is open for classes or school-related programs, or at any time when minors are using the facility, to receive, in addition to any other penalty imposed, punishment of one year in state prison.

end insert begin insert

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.

end insert begin insert

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

end insert begin delete

Existing law governs venue in criminal actions. If more than one violation of any of specified criminal offenses occurs in more than one jurisdictional territory, the jurisdiction of any one of those offenses, and of any offenses properly joinable with that offense, shall be in any jurisdiction where at least one of the offenses occurred, as specified.

end delete begin delete

This bill would make technical, nonsubstantive changes to those provisions.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 647 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

647.  

Except as provided in subdivision (l), begin delete every end delete begin insert a end insert 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.

begin insert

(b) (1) Who solicits or who agrees to engage in or who engages
in any act of prostitution and provides money or other
consideration.

end insert begin insert

(2) Who solicits or who agrees to engage in or who engages in
any act of prostitution and receives money or other consideration.

end insert begin delete

(b) Who solicits or who agrees to engage in or who engages in
any act of prostitution.

end delete

begin insert (3) end insert begin insert   end insert 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. begin delete No end delete begin insert An end insert agreement to engage
in an act of prostitution begin delete shall constitute a violation of end delete begin insert does not
violate end insert 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. As used in this subdivision, “prostitution”
includes any lewd act between persons for money or other
consideration.

begin insert

(4) Paragraph (2) of this subdivision does not apply to a person
under 18 years of age.

end insert begin insert

(5) It shall be an affirmative defense to a violation of paragraph
(2) that the acts constituting the violation were committed by a
person as a result of being a victim of human trafficking, as defined
by Section 236.1.

end insert begin insert

(6) Except as provided in subdivisions (k) and (m), a violation
of paragraph (1) is punishable by imprisonment in a county jail
for not less than 72 hours and not more than six months and by a
fine not exceeding one thousand dollars ($1,000). The fine imposed
shall be deposited in the treasury of the county in which the offense
occurred and used by the county to fund services for victims of
human trafficking. Upon a violation of paragraph (1), a person is
not 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 three days in
a county jail. In all cases in which probation is granted, the court
shall require as a condition of probation that the person be
confined in a county jail for at least three days. The court shall
not absolve a person who violates paragraph (1) from the
obligation of spending at least 72 hours in confinement in a county
jail.

end insert

(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. A person who has been placed
in civil protective custody shall not 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.

(4) (A) Any person who intentionally distributes the image of
the intimate body part or parts of another identifiable person, or
an image of the person depicted engaged in an act of sexual
intercourse, sodomy, oral copulation, sexual penetration, or an
image of masturbation by the person depicted or in which the
person depicted participates, under circumstances in which the
persons agree or understand that the image shall remain private,
the person distributing the image knows or should know that
distribution of the image will cause serious emotional distress, and
the person depicted suffers that distress.

(B) A person intentionally distributes an image described in
subparagraph (A) when he or she personally distributes the image,
or arranges, specifically requests, or intentionally causes another
person to distribute that image.

(C) As used in this paragraph, “intimate body part” means any
portion of the genitals, the anus and in the case of a female, also
includes any portion of the breasts below the top of the areola, that
is either uncovered or clearly visible through clothing.

(D) It shall not be a violation of this paragraph to distribute an
image described in subparagraph (A) if any of the following
applies:

(i) The distribution is made in the course of reporting an
unlawful activity.

(ii) The distribution is made in compliance with a subpoena or
other court order for use in a legal proceeding.

(iii) The distribution is made in the course of a lawful public
proceeding.

(5) This subdivision shall not preclude punishment under any
section of law providing for greater punishment.

(k) 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 begin delete shall end delete begin insert is end insert not begin delete be end delete 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. begin delete In no event does the end delete
begin insert The end insert court begin delete have the power to end delete begin insert shall not end insert absolve a person who violates
this subdivision from the obligation of spending at least 45 days
in confinement in a county jail.

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 begin delete shall end delete begin insert is end insert not begin delete be end delete 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. begin delete In no event does the end delete begin insert The end insert court begin insert shall not end insert 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.

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.

(m)  begin delete (1) end delete begin delete   end delete If a crime is committed in violation of begin insert paragraph (1)
of end insert subdivision (b) and the person who was solicited was a minor
at the time of the offense, and if the defendant knew or should
have known that the person who was solicited was a minor at the
time of the offense, begin insert or if end insert the begin insert person who was solicited was a person
posing as a minor and the person engaged in the solicitation had
specific intent to solicit a minor, the end insert violation is punishable by
imprisonment in a county jail for not less than begin delete two end delete begin delete days end delete begin insert 72 hours end insert
and not more than one begin delete year, or end delete begin insert year and end insert by a fine not begin insert less than
one thousand dollars ($1,000) and not end insert exceeding ten thousand
dollars begin delete ($10,000), end delete begin delete or by both that end delete begin delete fine and imprisonment. end delete begin insert ($10,000).
The fine imposed shall be deposited in the treasury of the county
in which the offense occurred and used by the county to fund
services for victims of human trafficking. Upon a violation of this
subdivision, a person is not 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 72 hours in a county jail. In all cases in which
probation is granted, the court shall require as a condition of
probation that the person be confined in a county jail for at least
72 hours. The court shall not absolve a person who is governed
by this subdivision from the obligation of spending at least 72
hours in confinement in a county jail. end insert

begin delete end delete begin delete

(2) The court may, in unusual cases, when the interests of justice
are best served, reduce or eliminate the mandatory two days of
imprisonment in a county jail required by this subdivision. If the
court reduces or eliminates the mandatory two days’ imprisonment,
the court shall specify the reason on the record.

end delete begin delete end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 266m is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 266m. end insert   

A person who is convicted of a felony violation of Section
236.1, for an offense committed against a minor, or Section 267,
if the violation takes place on the grounds of, or within 1,000 feet
of, a public or private elementary, vocational, junior high, or high
school, during hours that the school is open for classes or
school-related programs or at any time when minors are using the
facility, shall receive, in addition to any other penalty imposed,
punishment of one year in the state prison.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

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.

end insert

begin delete

SECTION 1.  

Section 784.7 of the Penal Code is amended to
read:

784.7.  

(a) If more than one violation of Section 220, except
assault with intent to commit mayhem, 261, 262, 264.1, 269, 286,
288, 288a, 288.5, or 289 occurs in more than one jurisdictional
territory, the jurisdiction of any of those offenses, and for any
offenses properly joinable with that offense, shall be in any
jurisdiction where at least one of the offenses occurred, subject to
a hearing, pursuant to Section 954, within the jurisdiction of the
proposed trial. At the Section 954 hearing, the prosecution shall
present written evidence that all district attorneys in counties with
jurisdiction of the offenses agree to the venue. Charged offenses
from jurisdictions that do not have a written agreement from the
district attorney shall be returned to that jurisdiction.

(b) If more than one violation of Section 273a, 273.5, or 646.9
occurs in more than one jurisdictional territory, and the defendant
and the victim are the same for all of the offenses, the jurisdiction
of any one of those offenses, and of any offenses properly joinable
with that offense, shall be in any jurisdiction where at least one of
the offenses occurred.

(c) If more than one violation of Section 236.1, 266h, or 266i
occurs in more than one jurisdictional territory, the jurisdiction of
any one of those offenses, and of any offenses properly joinable
with that offense, shall be in any jurisdiction where at least one of
the offenses occurred, subject to a hearing pursuant to Section 954,
within the jurisdiction of the proposed trial. At the Section 954
hearing, the prosecution shall present written evidence that all
district attorneys in counties with jurisdiction of the offenses agree
to the venue. Charged offenses from jurisdictions that do not have
a written agreement from the district attorney shall be returned to
that jurisdiction. In determining whether all counts in the complaint
should be joined in one county for prosecution, the court shall
consider the location and complexity of the likely evidence, where
the majority of the offenses occurred, the rights of the defendant
and the people, and the convenience of, or hardship to, the victim
or victims and witnesses.

end delete