BILL ANALYSIS Ó
AB 1708
Page A
Date of Hearing: April 19, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1708 (Gonzalez) - As Amended April 13, 2016
SUMMARY: Imposes mandatory minimum 72 hours in jail for persons
convicted of purchasing commercial sex, imposes a one-year
sentence enhancement for specified human trafficking offenses,
and recasts the crime of prostitution as specified.
Specifically, this bill:
1)Defines and divides the crime of prostitution into three
separate forms:
a) The defendant agreed to receive compensation, received
compensation, or solicited compensation in exchange for a
lewd act;
b) The defendant provided compensation, agreed to provide
compensation, or solicited an adult to accept compensation
in exchange for a lewd act; and
c) The defendant provided compensation, or agreed to
provide compensation, to a minor in exchange for a lewd
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act, regardless of which party made the initial
solicitation.
2)Clarifies that a manifestation of acceptance of an offer or
solicitation to engage in an act of prostitution shall not
constitute a violation unless some act, in addition to the
manifestation of acceptance, is done within this state in
furtherance of the commission of the act of prostitution by
the person manifesting an acceptance of an offer or
solicitation to engage in that act. As used in this
subdivision, "prostitution" includes any lewd act between
persons for money or other consideration.
3)Specifies that purchasers of commercial sex is punishable as
follows:
a) A mandatory minimum 72 hours in county jail;
b) Up to 6 months in the county jail; and
c) A fine not exceeding $1,000, which 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.
4)Clarifies that solicitation of a minor can be solicitation of
a person posing as a minor if the person engaged in the
solicitation had the specific intent to solicit a minor.
5)Increases mandatory minimum jail time for solicitation of a
minor from two days to 72 hours.
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6)Specifies that the fine for solicitation of a minor 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.
7)Removes judicial discretion on imposition of the 72 hour
mandatory minimum jail time imposed for solicitation of adults
and solicitation of minors.
a) States that 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.
b) Provides that 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.
c) States that the court shall not absolve a person from
the obligation of spending at least 72 hours in confinement
in a county jail.
8)Provides that persons who are convicted of human trafficking
of a minor or abduction of a minor for purposes of
prostitution within 1,000 feet of a school shall be subject to
a one-year state prison enhancement.
EXISTING LAW:
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1)Defines "unlawful sexual intercourse" as an act of sexual
intercourse accomplished with a person under the age of 18
years, when no other aggravating elements - such as force or
duress - are present. (Pen. Code, § 261.5, subd. (a).)
2)Provides the following penalties for unlawful sexual
intercourse:
a) Where the defendant is not more than three years older
or three years younger than the minor, the offense is a
misdemeanor;
b) Where the defendant is more than three years older than
the minor, the offense is an alternate felony-misdemeanor,
punishable by a jail term of up to one year, a fine of up
to $1,000, or both, or by a prison term of 16 months, two
years or three years and a fine of up $10,000; or,
c) Where the defendant is at least 21 years of age and the
minor is under the age of 16, the offense is an alternate
felony-misdemeanor, punishable by a jail term of up to one
year, a fine of up to $1,000, or both, or by a prison term
of 16 months, two years or three years and a fine of up
$10,000. (Pen. Code, § 261.5, subd (b)-(d).)
3)Provides that in the absence of aggravating elements each
crime of sodomy, oral copulation or penetration with a foreign
or unknown object with a minor is punishable as follows:
a) Where the defendant is over 21 and the minor under 16
years of age, the offense is a felony, with a prison term
of 16 months, two years or three years.
b) In other cases sodomy with a minor is a wobbler, with a
felony prison term of 16 months, two years or three years.
(Pen. Code, §§ 286, subd. (b), 288a, subd. (b), 289, subd.
(h).)
4)Provides that where each crime of sodomy, oral copulation or
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penetration with a foreign or unknown object with a minor who
is under 14 and the perpetrator is more than 10 years older
than the minor, the offense is a felony, punishable by a
prison term of three, six or eight years. (Pen. Code, §§ 286,
subd. (c)(1), 288a, subd. (c)(1), 289, subd. (j).)
5)Provides that any person who engages in lewd conduct - any
sexually motivated touching or a defined sex act - with a
child under the age of 14 is guilty of a felony, punishable by
a prison term of three, six or eight years. Where the offense
involves force or coercion, the prison term is five, eight or
10 years. (Pen. Code, § 288, subd. (b).)
6)Provides that where any person who engages in lewd conduct
with a child who is 14 or 15 years old, and the person is at
least 10 years older than the child, the person is guilty of
an alternate felony-misdemeanor, punishable by a jail term of
up to one year, a fine of up to $1,000, or both, or by a
prison term of 16 months, two years or three years and a fine
of up $10,000. (Pen. Code, § 288, subd. (c)(1).)
7)Includes numerous crimes concerning sexual exploitation of
minors for commercial purposes. These crimes include:
a) Pimping: Deriving income from the earnings of a
prostitute, deriving income from a place of prostitution,
or receiving compensation for soliciting a prostitute.
Where the victim is a minor under the age of 16, the crime
is punishable by a prison term of three, six or eight
years. (Pen. Code, § 266h, subds. (a)-(b);
b) Pandering: Procuring another for prostitution, inducing
another to become a prostitute, procuring another person to
be placed in a house of prostitution, persuading a person
to remain in a house of prostitution, procuring another for
prostitution by fraud, duress or abuse of authority, and
commercial exchange for procurement. (Pen. Code, § 266i,
subd. (a).);
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c) Procurement: Transporting or providing a child under 16
to another person for purposes of any lewd or lascivious
act. The crime is punishable by a prison term of three,
six, or eight years, and by a fine not to exceed $15,000.
(Pen. Code, § 266j.)
d) Taking a minor from her or his parents or guardian for
purposes of prostitution. This is a felony punishable by a
prison term of 16 months, two years, or three years and a
fine of up to $2,000. (Pen. Code, § 267.); and,
8)Provides that where a person is convicted of pimping or
pandering involving a minor the court may order the defendant
to pay an additional fine of up to $5,000. In setting the
fine, the court shall consider the seriousness and
circumstances of the offense, the illicit gain realized by the
defendant and the harm suffered by the victim. The proceeds
of this fine shall be deposited in the Victim-Witness
Assistance Fund and made available to fund programs for
prevention of child sexual abuse and treatment of victims.
(Pen. Code, § 266k, subd. (a).)
9)Provides that where a defendant is convicted of taking a minor
under the age 16 from his or her parents to provide to others
for prostitution (Pen. Code, § 267) or transporting or
providing a child under the age of 16 for purposes of any lewd
or lascivious act (Pen. Code § 266j), the court may impose an
additional fine of up to $20,000. (Pen. Code, § 266k, subd.
(b).)
10)Provides that where a defendant is convicted under the Penal
Code of taking a minor (under the age of 18) from his or her
parents for purposes of prostitution (Pen. Code, § 267), or
transporting or providing a child under the age of 16 for
purposes of any lewd or lascivious act (266j), the court, if
it decides to impose a specified additional fine, the fine
must be no less than $5,000, but no more than $20,000. (Pen.
Code, § 266k, subd. (b).)
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11)Provides that any person who solicits, agrees to engage in,
or engages in an act of prostitution is guilty of a
misdemeanor. The crime does not occur unless the person
specifically intends to engage in an act of prostitution and
some act is done in furtherance of agreed upon act.
Prostitution includes any lewd act between persons for money
or other consideration. (Pen. Code, § 647, subd. (b).)
12)Provides that if the defendant agreed to engage in an act of
prostitution, the person soliciting the act of prostitution
need not specifically intend to engage in an act or
prostitution. (Pen. Code, § 647, subd. (b).)
13)Provides that where any person is convicted of a second
prostitution offense, the person shall serve a sentence of at
least 45 days, no part of which can be suspended or reduced by
the court regardless of whether or not the court grants
probation. (Pen. Code, § 647, subd. (k).)
14)Provides that where any person is convicted for a third
prostitution offense, the person shall serve a sentence of at
least 90 days, no part of which can be suspended or reduced by
the court regardless of whether or not the court grants
probation. (Pen. Code, § 647, subd. (k).)
15)Requires the California Department of Justice (DOJ) to
collect data from law enforcement agencies about "the amount
and types of offenses known to the public authorities." (Pen.
Code, §§ 13000 and 13002.) DOJ must:
a) Prepare and distribute forms and electronic means for
reporting crime data.
b) Recommend the form and content of records to "ensure the
correct reporting of data?" and instruct agencies in the
collecting, keeping and reporting of crime data.
c) Process, interpret and analyze crime data.
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16)Requires law enforcement agencies, as specified, district
attorneys, the Department of Correction and other entities to
do the following: (Pen. Code, § 13020.)
a) Install and maintain records for reporting statistical
data.
b) Report data to DOJ "in the manner [DOJ] prescribes."
17)Provides that any person who deprives or violates the
personal liberty of any other with the intent to obtain forced
labor or services is guilty of human trafficking and shall be
punished in state prison for 5, 8, or 12 years and a fine of
not more than $500,000. (Pen. Code, § 236.1, subd. (a).)
18)States that any person who deprives or violates the personal
liberty of any other with the intent to effect or maintain a
violation of specified offenses related to sexual conduct,
obscene matter or extortion, 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).)
19)Specifies the following penalties for any person who causes,
induces, or persuades, or attempts to cause, induce, persuade,
a person who is minor at the time of commission of the offense
to engage in a commercial sex act, as provided:
a) Five, 8, or 12 years and a fine of not more than
$500,000; or,
b) 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).)
20)Provides that any person who takes away any other person
under the age of 18 years from the father, mother, or
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guardian, or other person, without their consent, for the
purpose of prostitution, is punishable by imprisonment in the
state prison and a fine not exceeding $2,000. (Pen. Code, §
267.)
FISCAL EFFECT:
COMMENTS:
1)Author's Statement: According to the author, "Traditionally,
law enforcement has tackled prostitution by arresting the
women and girls on the street, while "pimps" and "johns" have
been the least likely offenders in the commercial sex trade to
face jail time. This neglects the fact that many of these
criminalized "prostitutes" are actually victims of sex
trafficking, punishing the victim with possible jail time and
making it more difficult to go back to school or find work,
while leaving their exploiters without any incentive to stop
their profitable trafficking.
"In San Diego County, a recent joint study by researchers at
University of San Diego and Point Loma Nazarene University
found that 42% of first-time prostitution arrests are in fact
cases involving sex trafficking, and that the average age of
entry into child commercial sexual exploitation was 15 years
old.
"Recently, strides have been made to recognize these sex
trafficking victims as such, particularly in the case of
children. However, a strong demand for the industry still
exists, contributing to more and more vulnerable youth being
exploited. Evidence of this can be seen as recently as the
Super Bowl, in which hundreds were arrested for attempting to
AB 1708
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purchase sex<1>.
"There is currently no comprehensive statewide solution to
combat commercial sexual exploitation of children and to
assist those children. We are having the necessary
conversations about the appropriate services these victims
need- from mental health services, to job training, to stable
housing. However, we also have to recognize that in order to
stop this exploitation from happening in the first place, we
need to combat the demand for commercial sex which
incentivizes trafficking to happen.
"Commercial sex trafficking remains a lucrative business for
many, with a high demand leading to more and more youth being
exploited. Furthermore, traffickers continue to prey on
children at or near their schools to recruit them and traffic
them to purchasers, making these spaces that should be a safe
place for youth dangerous with few consequences to themselves.
"AB 1708 would help tackle the problem of commercial sexual
exploitation by taking a hard stance against those
contributing to the demand for sex trafficking and those
making schools an unsafe place for children by trafficking at
or near them. We need to make sure that the negative
consequences fall on the true criminals, not the victims."
2)This Bill Seeks to Focus Prosecution Efforts on The Demand
Side of Prostitution: This bill separates prostitution into
separately defined and charged offenses, different procedures,
penalties and other outcomes and goals can easily be amended
into the law. Additionally, the bill imposes mandatory
minimum jail sentences on individuals who are convicted of
buying or attempting to buy commercial sex in the form of
---------------------------
<1>http://www.cookcountysheriff.org/press_page/press_SuperbowlSex
TraffickngSting_02_9_2016.html
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prostitution.
3)Removal of Judicial Discretion in the Sentencing of
Prostitution Offenders by Mandating 72 Hours in County Jail
and a Mandatory Minimum Fine: Specifically, this bill
mandates that upon a conviction of prostitution, "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?from
the obligation of spending at least 72 hours in confinement in
a county jail."
From a policy standpoint, there are no mandatory minimum jail
sentences for a variety of offenses that are far more serious
than misdemeanor prostitution. For instance, there is no
mandatory jail sentence for first time domestic violence
offenses, or a wide range of violent felony offenses. This
bill takes the discretion from a judge to craft an appropriate
remedy in a misdemeanor case. Judges are in the best position
to make decisions based on the particular facts and
circumstances of a case. Imposing mandatory jail time on a
person convicted of prostitution can result in the loss of
employment and create problems for the offender that may lead
to further criminal acts. Courts have found success in
fashioning other remedies that have kept offenders employed,
outside of county jails at the public expense, and freed up
jail space for more dangerous offenders.
a) San Francisco District Attorney's Office First Offender
Prostitution Program (FOPP): FOPP is a court diversion
program aimed at reducing the volume and impact of sex
buying by targeting those who purchase sex. The program
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was first started in San Francisco in 1995. The program is
based on the belief that education as opposed to punishment
was an effective strategy to address the problems created
by the sex industry.
The program is focused on educating the purchasers of sex,
sometimes referred to as "john's." Purchasers of sex that
are dealing with criminal charges for that behavior are
predominantly men. The curriculum of the first offender is
designed to help men understand the negative effects of
being raised in a culture that promotes a system of male
superiority and entitlement toward women.
The program has incorporated evidence-based practices into
the FOPP programming. It includes: Social Learning
Theory, Cognitive Behavioral Interventions, Brief
Interventions, Harm Reduction, and Peer Reeducation. As
part of the FOPP, the legal consequences for subsequent
arrests for solicitation of prostitution are emphasized.
Participants in the FOPP, are educated about the impacts of
prostitution on the participants in the sex industry, the
impact of sexual exploitation, the health risks of engaging
in prostitution, and the impact of prostitution on the
neighborhoods where it occurs.
b) Success of Education Programs for Buyers of Sex: As of
2012, approximately 50 cities and counties in the U.S.
including Santa Clara, San Diego, Los Angeles, and Fresno
have similar programs. (An Overview of John Schools in the
United States, (2012), pp. 3-5.)
A 2008 study commissioned by the Department of Justice and
conducted by Abt Associates found that the First Offender
Prostitution Program (FOPP) was successful in substantially
reducing recidivism among men arrested for soliciting
prostitutes. According to the report, data collected from 10
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years prior to implementation and 10 years after implementation
(1985 through 2005) showed a sharp drop in re-offense rates
(recidivism) in 1995, the first year of implementation. This low
level of recidivism was sustained throughout the 10 years
studied between 1995 and 2005. The study also found that data
from San Diego showed that recidivism rates were cut in half
after their education program was implemented. In summary,
"FOPP significantly reduces recidivism" and is highly
transferable, having been successfully replicated and adapted in
other cities in the U.S. (Final Report on the Evaluation of the
First Offender Prostitution Program (2008), Abt Associate, pp.
v-vi and x.)
c) Courts General Power to Impose Conditions of Probation:
Courts have broad general discretion to fashion and impose
additional probation conditions that are particularized to
the defendant. (People v. Smith (2007) 152, Cal.App.4th
1245, 1249.) Courts may impose any "reasonable conditions"
necessary to secure justice, make amends to society and
individuals injured by the defendant's unlawful conduct,
and assist the "reformation and rehabilitation of the
probationer." (Pen. Code, § 1203.1.) A valid condition
must be reasonably related to the offense and aimed at
deterring such misconduct in the future. (People v.
Carbajal (1995) 10 Cal.4th 1114, 1121.)
d) Mandatory Fine is Subject to Penalty Assessments: The
amount spelled out in statute as a fine for violating a
criminal offense are base figures, as these amounts are
subject to statutorily-imposed penalty assessments, such as
fees and surcharges. This bill seeks to impose a mandatory
minimum fine of $1,000 with no judicial discretion to
depart from this financial penalty, the following penalty
assessments would be imposed pursuant to the Government and
Penal codes:
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-------------------------------------------------------
|Base Fine: |$1,000.0|
| | 0|
| | |
| | |
|----------------------------------------------+--------|
| | |
|----------------------------------------------+--------|
|Penal Code § 1464 assessment ($10 for every |$1,000.0|
|$10): | 0|
| | |
| | |
|----------------------------------------------+--------|
|Penal Code § 1465.7 assessment (20% | $200.00|
|surcharge): | |
| | |
| | |
|----------------------------------------------+--------|
|Penal Code § 1465.8 assessment ($40 per | $40.00|
|criminal offense): | |
| | |
| | |
|----------------------------------------------+--------|
|Government Code § 70372 assessment ($5 for | $500.00|
|every $10): | |
| | |
| | |
|----------------------------------------------+--------|
|Government Code § 70373 assessment ($30 for | $30.00|
|felony or misdemeanor offense): | |
| | |
| | |
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|----------------------------------------------+--------|
|Government Code § 76000 assessment ($7 for | $700.00|
|every $10): | |
| | |
| | |
|----------------------------------------------+--------|
|Government Code § 76000.5 assessment ($2 for | $200.00|
|every $10): | |
| | |
| | |
|----------------------------------------------+--------|
|Government Code § 76104.6 assessment ($1 for | $100.00|
|every $10): | |
| | |
| | |
|----------------------------------------------+--------|
|Government Code § 76104.7 assessment ($4 for | $400.00|
|every $10): | |
| | |
| | |
|----------------------------------------------+--------|
| | |
|----------------------------------------------+--------|
|Fine with Assessments: | |
| |$4,170.00*|
| | |
| | |
-------------------------------------------------------
*In addition to the assessments detailed in the chart, the
defendant could be subject to pay "actual administrative
costs" related to his or her arrest and booking (Gov. Code,
§ 29550 et seq.) and victim restitution for damages impose
by the court.
e) Abnormally High Criminal Penalties and Assessments in
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California: In a January 2016 report, the LAO found that
California has abnormally high criminal penalties and
assessments. <2> According to the report, "[c]urrently,
comprehensive information is not available on the criminal
fine and fee levels of other states. However, in order to
compare California's fine and fee levels to the rest of
the nation, we surveyed other states. Specifically, we
surveyed one large jurisdiction in each of 33 states
(including many states similar to California) for the fines
and fees associated with two offenses: a stop sign
violation and speeding at 20 miles per hour over the limit.
We found that California's fines and fees associated with
these common traffic offenses are relatively high. For
example, the total fines and fees for a stop sign violation
in California is $238, which was higher than 28 of the [33]
surveyed states (about 85 percent). The total in other
surveyed states ranged from $58 to $277, and averaged $157.
The total fines and fees for speeding at 20 miles per hour
over the limit in California was $367, which was higher
than all of the states we surveyed. The total in other
surveyed states ranges from $73 to $350, and averaged $203.
The LAO made a number of recommendations to improve the
state's fine and fee system. "First, we recommend that the
Legislature reevaluate the overall structure of the fine
and fee system to ensure the system is consistent with its
goals. As part of this process, the Legislature will want
to determine the specific goals of the system, whether
ability to pay should be incorporated into the system, what
should be the consequences for failing to pay, and whether
fines and fees should be regularly adjusted. Second, we
recommend increasing legislative control over the use of
criminal fine and fee revenue to ensure that its uses are
in line with legislative priorities by (1) requiring that
-------------------------
<2> Improving California's Criminal Fine and Fee System.
http://www.lao.ca.gov/Publications/Report/3322
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most criminal fine and fee revenue be deposited in the
state General Fund, (2) consolidating most fines and fees
into a single, statewide charge, (3) evaluating the
existing programs supported by fine and fee revenues, and
(4) mitigating the impacts of potential changes to the fine
and fee system on local governments."
4)Sexual Acts with Minors Regardless of the Payment of
Compensation Constitutes a Sex Crime: This bill would
separately define prostitution in which the person who
provides, agreed to provide, sexual services is a minor.
Sexual conduct with a minor constitutes a felony in most
instances, regardless of whether anything of value was offered
or exchanged for the sexual acts. If the minor involved in
commercial sex of was under the age of 14, the defendant has
committed the felony of lewd conduct, with a prison term of
three, six or eight years, or five, eight or 10 years if
coercion is involved (Pen. Code § 288, subds. (a) & (b).)
Soliciting an act of prostitution from a minor under the age
of 14 could likely be prosecuted as attempted lewd conduct.
The prison or jail term for an attempt is generally one-half
the punishment for the completed crime. Where the defendant
solicited or employed a minor who was 14 or 15 years old, and
the defendant was at least 10 years older than the minor, the
defendant has committed an alternate felony-misdemeanor.
Any defined sex act - sodomy, sexual penetration, oral
copulation or sexual intercourse - with a minor is a crime.
The penalties depend on the relative ages of the defendant and
the minor and whether the crime involved some form of force,
coercion or improper advantage. A defendant charged with a
prostitution-related offense involving a minor could also be
charged and convicted of a sex crime in the same case.
Generally, because the defined sex crime and the sexual
commerce offense would involve a single transaction or act,
the defendant could only be punished for one offense - the
offense carrying the greatest penalty. (Pen. Code § 654.)
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5)Accurate and Full Data Collection on Individually Defined
Forms of Prosecution: One of the purposes of this bill is to
collect data to determine how many adults are arrested for and
convicted of paying for sexual acts, how many adults are
arrested for and convicted of selling sexual acts and how many
adults are arrested for and convicted of paying for sexual
services from minors. The bill divides the prosecution
statute - Penal Code Section 647, subdivision (b) - into three
paragraphs reflecting each form of the crime. In order for
the data to be valuable and accurate, reporting agencies will
need to specifically note the paragraph under which a
defendant was arrested and convicted. Representatives from
DOJ explained: "The way [crime reports] appears in the system
is entirely dependent on the law enforcement agency or court
that enters the offense into the system. One agency may enter
PC 647(b)(2) while another may only enter PC 647(b)."
Prosecutors will likely record the specific paragraph under
which the defendant is convicted - PC 647 (b)(2) for example.
However, police officers and sheriff's deputies might not
specifically record the paragraph of arrest unless instructed
to do so. Further, it may not be apparent to officers and
deputies what specific form of prostitution would be charged
by the prosecutor in any particular case. That could cause
some confusion and inaccuracy in the data.
Another impediment to full and accurate data collection is the
fact that sex with a minor is a crime. If a minor and an
adult are involved in a prostitution incident, numerous
outcomes involving sex crimes and prostitution could occur.
For example, the police could arrest both parties for
prostitution, but the prosecutor could charge the adult with a
sex crime, or prostitution, or both. The prosecutor could
charge the minor with no crime, or file a prostitution charge.
The adult could be initially charged with a sex crime but
plead guilty to a prostitution offense, perhaps if the minor
appeared to be an adult. In sum, it may be difficult to
determine the extent of prostitution involving minors from
arrest and conviction data. If committee members approve the
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bill, they may wish to inquire as to whether DOJ should be
directed to instruct agencies on the reporting of prostitution
offenses. Committee members may also wish to inquire whether
it could be assured that prostitution involving minors could
be accurately reported and tracked.
6)Prostitution and Human Trafficking, Though Related, are not
Always the Same Thing: A growing number of policy discussions
are equating prostitution offenses with human trafficking
offenses. There is no doubt that the crimes are related,
however, they are not the same crime. A number of proposals
seek to treat all prostitution offenses more severely because
of the grave threat and nature of human trafficking. Human
trafficking is a very serious crime, involving forced
servitude, with very serious penalties. Most prostitution
offenses between a person who is soliciting a prostitute and
the prostitute themselves are misdemeanor crimes.
Additionally, pimps and panderers generally are treated more
severely by the law, with much more serious consequences than
the prostitute or the "john." Unlike the crimes of pimping
and pandering, human trafficking is a crime that generally
involves some form of force or coercion. Prostitution, by
definition, does not require any form of force or coercion.
California has existing strict laws for the treatment of pimps
and panderers, as well as human traffickers. However, those
crimes are not the same and should not be treated the same.
Furthermore, not every person who solicits a prostitute is
engaged in the crime of human trafficking. Categorizing all
"johns" as human traffickers, or all pimps and panderers as
human traffickers, is unproductive in setting criminal justice
policy. Distinctions between these crimes must be maintained
so that proper resources can be allocated to combat and deal
with the crimes based on their relative severity. Blurring
the lines between the less severe crimes related to
prostitution, and the more severe crimes related to human
trafficking, weakens the severity of human trafficking
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offenses. For instance, this committee has approved bills to
add human trafficking to the list of serious felonies.
However, if we continue to expand the definition of human
trafficking to include more minor prostitution-related
offenses the committee would have to re-evaluate in the future
whether it would still consider human trafficking a serious
felony.
According to the Polaris Project, "Human trafficking is a form
of modern-day slavery where people profit from the control and
exploitation of others. As defined under U.S. federal law,
victims of human trafficking include children involved in the
sex trade, adults age 18 or over who are coerced or deceived
into commercial sex acts, and anyone forced into different
forms of 'labor or services,' such as domestic workers held in
a home, or farm-workers forced to labor against their will.
The factors that each of these situations have in common are
elements of force, fraud, or coercion that are used to control
people."
(< http://www.polarisproject.org/human-trafficking/overview >.)
Pimping under California law means receiving compensation from
the solicitation of a known prostitute. (Pen. Code, § 266h.)
Whereas pandering means procuring another person for the
purpose of prostitution by intentionally encouraging or
persuading that person to become or continue being a
prostitute. (Pen. Code, § 266i.) Oftentimes, pimps use
mental, emotional, and physical abuse to keep their
prostitutes generating money. Consequently, there has been a
paradigm shift where pimping and pandering is now viewed as
possible human trafficking.
This new approach has been criticized by some because it blurs
the line between human trafficking and prostitution. Sex
workers say it discounts their ability to willingly work in
the sex industry. (See Nevada Movement Draws the Line on
Human Trafficking by Tom Ragan, Las Vegas Review Journal, May
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26, 2013, <
http://www.reviewjournal.com/news/las-vegas/nevada-movement-dra
ws-line-human-trafficking >.)
a) Prostitution Generally: The basic crime of prostitution
is a misdemeanor offense. (Pen. Code § 647(b).)
Prostitution can be generally defined as "soliciting or
agreeing to engage in a lewd act between persons for money
or other consideration." Lewd acts include touching the
genitals, buttocks, or female breast of either the
prostitute or customer with some part of the other person's
body for the purpose of sexual arousal or gratification of
either person.
To implicate a person for prostitution themselves, the
prosecutor must prove that the defendant "solicited" or
"agreed" to "engage" in prostitution. A person agrees to
engage in prostitution when the person accepts an offer to
commit prostitution with specific intent to accept the
offer, whether or not the offerer has the same intent.
For the crime of "soliciting a prostitute" the prosecutors
must prove that the defendant requested that another person
engage in an act of prostitution, and that the defendant
intended to engage in an act of prostitution with the other
person, and the other person received the communication
containing the request. The defendant must do something
more than just agree to engage in prostitution. The
defendant must do some act in furtherance of the agreement
to be convicted. Words alone may be sufficient to prove
the act in furtherance of the agreement to commit
prostitution
Violation of Pen. Code § 647(b) is a misdemeanor. For a
first offense conviction of prostitution the defendant
faces up to 180 days in jail. If a defendant has one prior
conviction of prostitution he or she must receive a county
jail sentence of not less than 45 days. If the defendant
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has two or more prior convictions, the minimum sentence is
90 days in the county jail.
In addition to the punishment described above, if the
defendant has a conviction of prostitution, he or she faces
fines, probation, possible professional licensing
restrictions or revocations, possible immigration
consequences, possible asset forfeiture, and possible
driving license restrictions.
Closely associated crimes to prostitution include:
abduction of a minor for prostitution (Pen. Code 267);
seduction for prostitution (Pen. Code 266); keeping a house
of prostitution (Pen. Code 315); leasing a house for
prostitution (Pen. Code 318); sending a minor to a house of
prostitution (Pen. Code 273e); taking a person against that
person's will for prostitution (Pen. Code 266a); compelling
a person to live in an illicit relationship (Pen. Code
266b); placing or leaving one's wife in a house of
prostitution (Pen. Code 266g); loitering for prostitution
( Pen. Code 653.22 subd. (a) ); pimping ( Pen. Code 266h) ;
or, pandering ( Pen. Code 266i) . Most of these crimes are
punished much more severely than the underlying
prostitution offense, particularly the crimes of pimping,
pandering, and procurement.
b) Human Trafficking Generally: Human trafficking involves
the recruitment, transportation or sale of people for
forced labor. Through violence, threats and coercion,
victims are forced to work in, among other things, the sex
trade, domestic labor, factories, hotels and agriculture.
According to the January 2005 United States Department of
State's Human Smuggling and Trafficking Center report,
"Fact Sheet: Distinctions Between Human Smuggling and
Human Trafficking", there is an estimated 600,000 to
800,000 men, women and children trafficked across
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international borders each year. Of these, approximately
80% are women and girls and up to 50% are minors. A recent
report by the Human Rights Center at the University of
California, Berkeley cited 57 cases of forced labor in
California between 1998 and 2003, with over 500 victims.
The report, "Freedom Denied", notes most of the victims in
California were from Thailand, Mexico, and Russia and had
been forced to work as prostitutes, domestic slaves, farm
laborers or sweatshop employees. [University of
California, Berkeley Human Rights Center, "Freedom Denied:
Forced Labor in California" (February, 2005).] According
to the author:
"While the clandestine nature of human trafficking makes it
enormously difficult to accurately track how many people
are affected, the United States government estimates that
about 17,000 to 20,000 women, men and children are
trafficked into the United States each year, meaning there
may be as many as 100,000 to 200,000 people in the United
States working as modern slaves in homes, sweatshops,
brothels, agricultural fields, construction projects and
restaurants."
In 2012, Californians voted to pass Proposition 35, which
modified many provisions of California's already tough
human trafficking laws. The proposition increased criminal
penalties for human trafficking, including prison sentences
up to 15-years-to-life and fines up to $1,500,000.
Additionally, the proposition specified that the fines
collected are to be used for victim services and law
enforcement. Proposition 35 requires persons convicted of
trafficking to register as sex offenders. Proposition 35
prohibits evidence that victim engaged in sexual conduct
from being used against victims in court proceedings.
Additionally, the proposition lowered the evidential
requirements for showing of force in cases of minors.
i) Trafficking Victims Protection Act of 2000 (22 USC
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Sections 7101 et seq.): In October 2000, the Trafficking
Victims Protection Act of 2000 (TVPA) was enacted and is
comprehensive, addressing the various ways of combating
trafficking, including prevention, protection and
prosecution. The prevention measures include the
authorization of educational and public awareness
programs. Protection and assistance for victims of
trafficking include making housing, educational,
health-care, job training and other federally funded
social service programs available to assist victims in
rebuilding their lives. Finally, the TVPA provides law
enforcement with tools to strengthen the prosecution and
punishment of traffickers, making human trafficking a
federal crime.
ii) Proposition 35 Update to Human Trafficking Laws: In
2012, Californians voted to pass Proposition 35, which
modified many provisions of California's already tough
human trafficking laws. Specifically, Proposition 35
increased criminal penalties for human trafficking
offenses, including prison sentences up to
15-years-to-life and fines up to $1.5 million. The
proposition specified that the fines collected are to be
used for victim services and law enforcement. In
criminal trials, the proposition prohibits the use of
evidence that a person was involved in criminal sexual
conduct (such as prostitution) to prosecute that person
for that crime if the conduct was a result of being a
victim of human trafficking, and makes evidence of sexual
conduct by a victim of human trafficking inadmissible for
the purposes of attacking the victim's credibility or
character in court. The proposition lowered the
evidentiary requirements for showing of force in cases of
minors.
Proposition 35 also requires persons convicted of human
trafficking to register as sex offenders and expanded
registration requirements by requiring registered sex
offenders to provide the names of their internet
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providers and identifiers, such as e-mail addresses, user
names, and screen names, to local police or sheriff's
departments. After passage of Proposition 35, plaintiffs
American Civil Liberties Union and Electronic Frontier
Foundation filed a law suit claiming that these
provisions unconstitutionally restricts the First
Amendment rights of registered sex offenders in the
states. A United States District Court judge granted a
preliminary injunction prohibiting the implementation or
enforcement of Proposition 35's provisions that require
registered sex offenders to provide certain information
concerning their Internet use to law enforcement. [Doe
v. Harris (N.D. Cal., Jan. 11, 2013, No. C12-5713) 2013
LEXIS 5428.]
iii)California Attorney General's Report on Human
Trafficking: The California Attorney General's Human
Trafficking in California 2012 report stated that human
trafficking investigations and prosecutions have become
more comprehensive and organized. There are nine human
trafficking task forces in California, composed of local,
state and federal law enforcement and prosecutors.
Data on human trafficking has improved, although the data
still does not reflect the actual extent and range of
human trafficking. Data from 2010 through 2012 collected
by the California task forces are set out in the
following chart:
California Human Trafficking Task Forces Data
2010-2012
---------------------------------------------------------
|Investigations |2,552 |
| | |
| | |
|--------------------------------+------------------------|
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|Victims Identified |1,277 |
| | |
| | |
|--------------------------------+------------------------|
|Arrests Made |1,798 |
| | |
| | |
---------------------------------------------------------
Trafficking by Category
----------------------------------------------------------
|Sex Trafficking |56% |
| | |
| | |
|--------------------------------+-------------------------|
|Labor Trafficking |23% |
| | |
| | |
|--------------------------------+-------------------------|
|Unclassified or Insufficient |21% |
|Information | |
| | |
| | |
| | |
| | |
----------------------------------------------------------
7)Current Penalties for Human Trafficking: In 2012, California
voters enacted Proposition 35, which modified many provisions
of California's already tough human trafficking laws.
Specifically, Proposition 35 expanded the definition of human
trafficking and increased criminal penalties and fines for
human trafficking offenses. The proposition specified that
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the fines collected are to be used for victim services and law
enforcement. In criminal trials, the proposition makes
evidence of sexual conduct by a victim of human trafficking
inadmissible for the purposes of attacking the victim's
credibility or character in court. The proposition also
lowered the evidentiary requirements for showing of force in
cases of minors. (See Proposition 35 voter guide available at
Secretary of State's website,
< http://www.voterguide.sos.ca.gov/past/2012/general/proposition
s/35/analysis.htm > (as of Apr. 22, 2015.)
The current penalties for human trafficking are very severe.
Human trafficking for the purpose of obtaining forced labor or
services is punishable by imprisonment in state prison for up
to 12 years. If the offense involves human trafficking for the
purpose of specified sexual conduct, obscene matter or
extortion, the punishment proscribed is up to 20 years
imprisonment in state prison. If the offense involves causing
a minor to engage in a commercial sex act, the penalty imposed
may be 15-years to life. (Pen. Code, § 236.1.) The court may
also impose up to a $1.5 million fine on a person convicted of
human trafficking. (Pen. Code §§ 236.1 and 236.4.)
8)State Prison Overcrowding Considerations: 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.)
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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.
In its most recent status report to the court (February 2015),
the administration reported that as "of February 11, 2015,
112,993 inmates were housed in the State's 34 adult
institutions, which amounts to 136.6% of design bed capacity,
and 8,828 inmates were housed in out-of-state facilities.
This current population is now below the court-ordered
reduction to 137.5% of design bed capacity." (Defendants'
February 2015 Status Report In Response To February 10, 2014
Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v.
Brown, Plata v. Brown (fn. omitted).
The state now must stabilize these advances and demonstrate to
the federal court that California has in place the "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).)
Moreover, there are still approximately 10,500 prisoners being
housed in out of state and in private prisons. (See latest
CDCR monthly population report, as of March 31, 2015:
< http://www.cdcr.ca.gov/Reports_Research/Offender_Information_S
ervices_Branch/Monthly/TPOP1A/TPOP1Ad1503.pdf >.)
This bill creates a new enhancement of one year when the
defendant is convicted of a human trafficking offense, where
the offense was committed against a minor, or convicted of
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abducting a minor for the purpose of prostitution, where the
offense was committed on the grounds of, or within 1,000 feet
of a school. Although the state is currently in compliance
with the court-ordered population cap, creating new
enhancements that increase the length of time that an inmate
must serve in prison will reverse the progress made in
reducing the state prison population. This is contrary to the
court's order for a durable solution to prison overcrowding.
9)Argument in Support: According to the Alameda County District
Attorney's Office, "In order to fully combat the problem of
commercial sex trafficking, it is important to combat the
demand for these services, and recognize that purchasers of
sex are driving this exploitative and dangerous industry of
slavery. This bill would require a person who sought to
procure or did procure sexual services to spend at least 3
days in jail in addition to paying a minimum fine of $1,000 to
fund victim services. This bill would also add an additional
one year in state prison to a felony conviction of trafficking
if the victim was a minor and the activities took place near a
school.
"As long as there is demand, there will be an exploiter to
fill it. Unfortunately it is at the expense of the life,
well-being and psychological impact of the child. Individuals
who purchase human beings for sex fuel the market the
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."
10)Argument in Opposition: According to the American Civil
Liberties Union, "We believe that the new sentencing
enhancement proposed is unnecessary in light of existing
penalties, and that the mandatory 72 hours of confinement for
solicitation unnecessarily infringes on judicial discretion.
In addition, we believe it is inappropriate to expand the
punishment for the offense of soliciting a minor to include
soliciting someone 'posing as a minor.'
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"AB 1708 makes six changes to California's criminal laws as
follows:
1) Divides the offense of prostitution into two separate
sections, one for the person receiving compensation and one
for the person offering compensation.
2) Imposes a mandatory 72 hour period of confinement on any
individual convicted of offering to provide compensation for
an act of prostitution, removing the judge's discretion to
allow a person to serve this sentence through community
service, work furlough or another non-custodial form of
punishment.
3) Expands the punishment for soliciting an act of
prostitution with a minor to include a person 'posing as a
minor.'
4) Adds a new sentencing enhancement for committing the
crime of human trafficking "against a minor" on the grounds
of or within 1,000 feet of a school.
"First, imposing a mandatory 72 hour period of incarceration for
the offense of solicitation unnecessarily reduces judicial
discretion in sentencing. Current law provides for a mandatory
two day jail sentence for soliciting an act of prostitution if
the person solicited was a minor. (Pen. Code sec. 647(m)(1).)
Current law also provides that the judge 'may, in unusual cases,
when the interests of justice are best served, reduce or
eliminate the mandatory two days of imprisonment.' (Pen. Code
sec. 647(m)(2).)
"AB 1708 would eliminate this narrow safety-valve of judicial
discretion, would increase the mandatory jail period from 48 to
72 hours, and would apply the mandatory jail period to all
solicitation offenses, including offenses where the person
solicited was an adult. We believe these increases in criminal
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sanctions will not reduce the instances of human trafficking but
will exacerbate jail overcrowding and prevent judges from
imposing appropriate sentences based on the unique facts of the
case before them. Current law sufficiently punishes offenders
while also preserving judicial discretion in unusual cases, when
the interests of justice would best be served by not imposing the
jail sentence. This is a very restricted but wise safeguard that
allows judge to exercise their discretion when the specific
circumstances of the case call for another approach. Mandating
jail time, without any judicial discretion to pursue
alternatives, for low-level, nonviolent conduct that involves no
actual sexual activity is counter-productive to the goals of
rehabilitation and limits the ability to use scarce jail space
for serious offenders.
"Second, punishing a person for soliciting a minor for an act of
prostitution, when the person solicited was not actually a minor
but instead a person 'posing as a minor,' would significantly
expand the punishment provided under current law. Current law
doubles the maximum possible punishment for solicitation 'if the
defendant knew or should have known that the person who was
solicited was a minor at the time of the offense.' (Pen. Code
sec. 647(b)(m).) This double punishment takes into account the
harm caused to the minor who was solicited.
"AB 1708 would apply this longer maximum punishment 'if the
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.' This appears intended to facilitate undercover sting
operations in which law enforcement pose as minors, typically in
online forums. But in these circumstances, no minor has actually
been harmed. The additional punishment is thus unwarranted.
"Third and finally, we believe AB 1708's new proposed sentencing
enhancement for human trafficking committed "against a minor" on
the grounds of or within 1,000 feet of a school is unnecessary
and counter-productive. Research has shown that more severe
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sentences do not actually enhance public safety.<3> Studies have
concluded that the severity of punishment does not generally have
an increased effect on deterrence.<4> Rather, researchers have
found that certainty of punishment - that someone will be
punished for a particular crime - has a greater deterrent effect
than the severity of the punishment itself.<5>
"California law already provides significant punishments for
human trafficking involving a minor. Under existing Penal Code
section 236.1, the lowest penalty possible for human trafficking
is five years in state prison. (Pen. Code sec. 2361.(a).) The
highest penalty is life imprisonment. (Pen. Code sec.
236.1(c)(2).) These punishments can be further enhanced by a
myriad of existing sentence enhancements.
"Governor Brown has criticized our state's criminal laws,
particularly the number of sentencing enhancements, observing,
'[t]here are now 400 separate enhancements that can add up to 25
years, each one of them, and now you have over 5,000 separate
criminal provisions.'<6> As the Governor stated in his veto
message of several bills last fall, '[t]his multiplication and
particularization of criminal behavior creates increasing
----------------------------
<3> Valerie Wright, Deterrence in Criminal Justice: Evaluating
Certainty vs. Severity of Punishment (Sentencing Project 2010)
available at
http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf
<4> Id.
<5> Id.
<6> Scott Shafer, Prosecutors Cry Foul Over Jerry Brown's Ballot
Measure, KQED, Feb. 12, 2016, available at
http://ww2.kqed.org/news/2016/02/12/prosecutors-cry-foul-over-jer
ry-browns-ballot-measure
AB 1708
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complexity without commensurate benefit.'<7>
"While protecting minors from victimization is an extremely
important objective, we believe that lengthening sentences for
the offenses referenced in this bill and decreasing judicial
discretion in sentencing will not accomplish that goal. For these
reasons, we must oppose AB 1708 unless amended. Please do not
hesitate to contact us should you have any questions."
1)Related Legislation:
a) AB 1051 (Maienschein), of this legislative session,
changed the definition of "pattern of criminal gang
activity" to add the crime of human trafficking and creates
a new one-year state prison enhancement for specified
crimes committed against a minor on the grounds of, or
within 1,000 feet of a school. AB 1051 was held in the
Senate Appropriations Committee.
b) SB 420 (Huff), recasts the prostitution section using
the exact same language as this bill, dividing buyers,
sellers, and buyers of sexual services from minors. SB 420
was held for interim study by this committee.
REGISTERED SUPPORT / OPPOSITION:
Support
---------------------------
<7>Patrick McGreevy, With Strong Message Against Creating New
Crimes, Gov. Brown Vetoes Drone Bills, LA Times, Oct. 3, 2015,
available at
http://www.latimes.com/politics/la-me-pc-gov-brown-vetoes-bills-r
estricting-hobbyist-drones-at-fires-schools-prisons-20151003-stor
y.html
AB 1708
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Alameda County District Attorney's Office
California District Attorneys Association
County of San Diego
Peace Officers Research Association of California
San Diego District Attorney's Office
State Coalition of Probation Organizations
Opposition
American Civil Liberties Union
California Public Defenders Association
California State Sheriffs' Association
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744
AB 1708
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