BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1708       Hearing Date:     June 21, 2016     
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          |Author:    |Gonzalez                                             |
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          |Version:   |June 15, 2016                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                     Subject:  Disorderly Conduct:  Prostitution



          HISTORY

          Source:   Author

          Prior Legislation:                      SB 776 (Block) 2015,  
                         held in Assembly Public Safety
          SB 420 (Huff) 2015, held in Assembly Public Safety
          SB 982 (Huff) - Held in Senate Appropriations, 2014
                         SB 1388 (Lieu) - Ch. 714, Stats. 2014

          SB 244 (Liu) 2013 - 2014 died in the Assembly
          Support:  Alameda County District Attorney; California District  
                    Attorneys Association; Grossmont Union High School  
                    District; Peace Officers Research Association of  
                    California (PORAC); San Diego County; San Diego County  
                    District Attorney; San Diego School Police Officers  
                    Association; State Coalition of Probation  
                    Organizations (SCOPO)

          Opposition:American Civil Liberties Union of California;  
                    California Public Defenders Association; California  
                    State Sheriffs' Association

          Assembly Floor Vote:                 75 - 1










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          PURPOSE

          The purposes of this bill are 1) to recast the crime of  
          prostitution into three parts, one applicable to the person who  
          agreed to receive, or received compensation in exchange for a  
          sexual act , one applicable to the person who paid, or agreed to  
          pay compensation, one applicable to the person who paid, or  
          agreed to pay compensation to a minor; 2) to impose a mandatory  
          minimum sentenced term of 72 hours in jail and a set fine of  
          $,1000  for persons convicted of purchasing commercial sex; 3)  
          to provide that if the defendant knew or should have known that  
          the other party was a minor, or the defendant intended to  
          purchase sex from a minor, the $1,000 fine is the minimum fine,  
          with a maximum of $10,000; 4) to direct that the fine proceeds  
          be deposited with the county to fund services for human  
          trafficking victims; 5) to require any person convicted of  
          providing compensation, or agreeing to provide compensation for  
          a sexual act to serve at least a continuous 24 hours in jail  
          before being eligible for release on any basis - 48 hours if the  
          defendant intended to engage in prostitution with a minor, or  
          knew or should have known the other party was a minor; 6) to  
          require defendants granted probation to serve a continuous 24 or  
          48 hours in jail as a condition of  probation;  7) to impose a  
          one-year sentence enhancement for human trafficking or abduction  
          of a minor for prostitution, if the crime occurred on or within  
          1,000 feet of a school.

          Existing law provides that any person who deprives or violates  
          the personal liberty of another is guilty of human trafficking  
          if the person specifically intends one of the following: 1) to  
          effect or maintain a specified felony commercial sex or  
          prostitution-related offense; 2) commit extortion; 3) specified  
          child pornography offenses or 4) obtain forced labor or  
          services.  (Pen. Code § 236.1, subd. (a)-(b).)

          Existing law provides that human trafficking of a minor does not  
          include an element of deprivation of the victim's liberty.    
          Trafficking of a minor is committed through inducing, persuading  
          or causing a minor to engage commercial sex acts, child  
          pornography or extortion, or attempting to do so.  It is  
          punishable as follows:

           5, 8 or 12 years in prison and a fine of up to $500,000.  
                 15-years-to-life and a fine of up to $500,000 if the  









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               offense involved force, threats, coercion, fraud or deceit,  
               as specified.  (Pen. Code § 236.1, subd. (c).)

          Existing law includes these special rules applicable to human  
          trafficking of a minor:

                 Whether the defendant caused, induced or persuaded a  
               minor to engage in a commercial sex act depends on the  
               totality of circumstances, including the relationship  
               between the victim and the defendant.
                 Mistake of fact as to the age of the victim is not a  
               defense.
                 Consent by a minor to an act underlying a human  
               trafficking charge is not a defense.  (Pen. Code § 236.1,  
               subd. (d)-(f) 

          Existing law provides for the following enhancements and special  
          fines in human trafficking cases:

                 The court may impose on the defendant an additional fine  
               of up to $1,000,000.  (Pen. Code § 236.4, subd. (a).)
                 A defendant who inflicts great bodily injury on the  
               victim of human trafficking shall be punished by a  
               consecutive  prison term enhancement of 5, 7, or 10 years.   
               (Pen. Code § 236.4, subd. (b).)
                 A defendant shall receive a consecutive prison  
               enhancement term of 5 years for each prior human  
               trafficking conviction.

          Existing law provides that taking a minor from her or his  
          parents or guardian for purposes of prostitution is a felony  
          punishable by a prison term of 16 months, two years, or three  
          years and a fine of up to $2,000.  The offense can be committed  
          through inducements, not abduction alone.  (Pen. Code § 267.)

          Existing law provides that prostitution involves any lewd act  
          between persons for money or other consideration.  (Pen. Code §  
          647, subd. (b); CALCRIM 1154)

          Existing decisional law defines a lewd act as "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." (CALCRIM 1154,  
          citing Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256; See,  









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          Wooten v. Superior Court (2001) 93 Cal.App.4th 422, pp.  
          431-433.)  
           
           Existing law provides that any person who solicits, agrees to  
          engage in, or engages in an act of prostitution is guilty of a  
          misdemeanor.  The crime includes an element that the defendant  
          specifically intended to engage in an act of prostitution and  
          some act was done in furtherance of the agreed upon act.  (Pen.  
          Code § 647, subd. (b).)

          Existing law provides that where any person is convicted for 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).)

          Existing law 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).)

          Existing law provides that where a defendant is convicted of a  
          prostitution offense in which the defendant sought to procure or  
          procured the "sexual services of a prostitute who was a minor,"  
          the following shall apply:

             a)   The defendant shall, in addition to any other fine or  
               penalty, be ordered to pay up    to$25,000; and 
             b)   Upon appropriation by the Legislature, the proceeds of  
               the fine shall "be available to fund programs and services  
               for commercially sexually exploited minors in the counties"  
               of conviction.  (Pen. Code §§ 261.9 and 647, subd. (b).

          This bill 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  









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               provide compensation, to a minor in exchange for a lewd  
               act, regardless of which party made the initial  
               solicitation.  

          This bill specifies that a defendant, who purchased or agreed to  
          purchase commercial sex, is guilty of a misdemeanor, 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, to 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;
             d)   A convicted defendant is not eligible for release upon  
               completion of sentence 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 24 hours in a county jail;


             e)  A defendant granted probation must serve a term of 24  
               continuous hours in jail as a condition or of probation.


          This bill specifies that if a defendant who purchased or agreed  
          to purchase commercial sex knew or should have known that the  
          provider of the commercial sex act was a minor, or specifically  
          intended to obtain such services from a minor, the misdemeanor  
          is punishable as follows:


            a)   A term of up to one year in a county jail;
            b)   A mandatory minimum term of 72 hours; and  
             c)   A fine of at least $1,000 (with a maximum of $10,000) to  
               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;
             d)   A convicted defendant is not eligible for release upon  
               completion of sentence 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 48 hours in a county jail;
             e)  A defendant granted probation must serve a term of48  
               continuous hours in jail as a condition or of probation.









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          This bill provides that where the defendant purchased, or agreed  
          to purchase commercial sex and the defendant knew or should have  
          known that the person to be compensated is a minor, or where the  
          defendant specifically intended to purchase sex from a minor,  
          the penalties are as follows must impose a sentence of at least  
          72 hours in jail; and a defendant must serve a minimum of 48  
          continuous hours in jail before release on parole, on work  
          furlough or work release, or on any other basis.  


          This bill grants the court discretion to allow a defendant to  
          serve the required 48 continuous hours in jail so as to not  
          interfere with his work schedule.  If 48 continuous hours of  
          custody would interfere the defendant's work schedule, the court  
          can allow the defendant to serve that time when he is not  
          working.


          This bill 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.  


          This bill provides that persons who are convicted of human  
          trafficking of a minor, or taking a minor from his or her  
          parents or guardian for purposes of prostitution, or within  
          1,000 feet of a school shall be subject to a one-year state  
          prison enhancement.  


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   









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          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 December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 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).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 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).)  
           
          While significant gains have been made in reducing the prison  
          population, the state 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).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  









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               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.






          COMMENTS

          1.  Need for This Bill

          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 percent 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 purchase sex.










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               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.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, or 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  









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          solicited or employed a minor who was14 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.)  

          DO MOST PROSTITUTION INCIDENTS IN WHICH AN ADULT SOUGHT TO  
          PURCHASE SEX FROM A MINOR CONSTITUTE ATTEMPTED OR COMPLETED SEX  
          CRIMES?

          If this bill is enacted, a defendant could argue that if he  
          engaged in acts of prostitution with a minor, he should only be  
          charged for that offense, not with a sex crime against a minor.   
          That is because a maxim of statutory construction holds that  
          where a defendant's conduct can be prosecuted under a general  
          law and a law that more specifically describes the defendant's  
          conduct, the Legislature intended that the more specific statute  
          apply.  That is especially true where the specific law is  
          enacted after the more general law, as the Legislature would be  
          presumed to have known about the general law at the time the  
          specific law was passed.  To preclude such an argument, it is  
          recommended that the bill be amended to include a "savings  
          clause" stating that this bill does not preclude prosecution  
          under any other provision of law.

          SHOULD THE BILL BE AMENDED TO STATE THAT THIS BILL DOES NOT  
          PRECLUDE PROSECUTION UNDER ANY OTHER PROVISION OF LAW?

          3.A Defendant Required to Serve a Minimum Jail Term as a  
            Condition of Probation may Refuse Probation
               
          It appears that this bill would require a person convicted  
          of agreeing to provide, or providing compensation in  
          exchange for a sexual act to serve 24 continuous hours in  









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          jail.  The bill also provides that a person who is not  
          granted probation, or who refuses probation, and who is  
          then sentenced to a term of at least 72 hours in jail would  
          be eligible for release on work furlough, work release or  
          some other basis after 24 hours.   Many, if not most,  
          county jails are crowded, particularly in urban areas.  A  
          defendant who is convicted of a prostitution offense and  
          sentenced to serve 72 hours in jail in a county with  
          crowded jail conditions could well serve no more than the  
          continuous 24 hours in jail.  As such, it is unlikely that  
          a prostitution defendant would agree to probation, as he  
                                                        would serve the same jail term as a sentenced inmate.  Even  
          where a sentenced inmate would actually serves up to 72  
          hours in jail, he may well elect to serve that sentence and  
          avoid probation supervision.  This may be particularly  
          likely where a defendant can serve his sentence on days  
          when he is not working. 

          A defendant who is not on probation cannot be monitored by  
          the probation department or the court.  A defendant who is  
          not on probation cannot be ordered to engage in  
          rehabilitative or restorative justice programs.   If the  
          odds of getting caught committing such a crime is low, and  
          that may be likely, such a person could remain a  
          significant source of demand for prostitution.

          4.  Application of the Fine Provisions
          
          The bill provides that the proceeds of a fine imposed on a  
          defendant who was convicted of seeking or obtaining  
          commercial sex from a minor, or who intended to obtain  
          commercial sex from a minor, shall be deposited with the  
          county to fund services for human trafficking victims.  It  
          is not clear how the fine would be applied. That is, is the  
          fine exempt from penalty assessments?  Generally, every  
          criminal fine is subject to penalty assessments unless the  
          section defining the fine specifically exempts it from  
          penalty assessments.  If this fine is not exempt from  
          penalty assessment, is the intent of the author that the  
          $1,000 to $10,000 base fine be used for human trafficking  
          services, not any other local program or expense?

          5.  Mandatory Penalty Assessments Effectively Quadruple a  
          Criminal Fine









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          Penalty assessments and fees must be assessed on the base fine  
          for a crime.  Assuming a defendant was fined $1,000 as the fine  
          for a criminal offense, the following penalty assessments would  
          be imposed pursuant to the Penal Code and the California  
          Government Code:

          Base Fine:                                                        
               ??                                                     $   
          1,000 

          Pen. Code § 1464 state penalty on fines:                          
                                                       $1,000 ($10 for  
          every $10)
          Pen. Code § 1465.7 state surcharge:                               
                                                       $ 200 (20%  
          surcharge)
          Pen. Code § 1465.8 court operation assessment:                    
                       $40 
          Gov. Code § 70372 court construction penalty:                     
                                                       $500 ($5 for every  
          $10)
          Gov. Code § 70373 assessment:                                    
          $30  
          Gov. Code § 76000 penalty:                                        
             $700 ($7 for every $10)
          Gov. § 76000.5 EMS penalty:                                       
          ??                        $200  ($2 for every $10) 
          Gov.§  Code § 76104.6 DNA fund penalty:                           
                               $100  ($1 for every $10)
          Gov. § Code § 76104.7 addt'l DNA fund penalty:                    
                               $400  ($4 for every $10)

          Total Fine with Assessments:                                      
                                                                    $4,170

          It should be noted that this figure does not include  
          restitution, a mandatory  restitution fine, and that other fines  
          and fees, such as the jail booking fee, attorney fees, OR  
          release fees, probation department fees, may also be applicable.

          6.  Limited Distribution of Fines into the Victim Witness Fund  
               for Sex Trafficking Victims










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          The value of special fines to fund services for sexually  
          exploited persons - particularly juveniles - appears to be quite  
          limited.  A negligible amount of income - $20,000 in 2013-14 is  
          generated from surplus money investments and penalties on  
          specific felony convictions.

          The Victim Witness Assistance Fund is largely funded by a small  
          portion of the penalty assessments imposed on each criminal  
          fine.  Local victim-witness assistance programs also receive  
          federal Victims of Crime Act and Violence Against Women Act  
          funding.  In 2013-14, the fund was projected to have a negative  
          balance of $83,000.  In 2014-15, the fund was projected to have  
          a balance (reserve) of $5.8 million due to a $10.1 million  
          General Fund loan repayment from 2011.  The fund balance for  
          2015-2016 is projected to be approximately $900,000, arguably  
          not a substantial sum in light of the need for assistance to  
          victims.  Each county designates an agency to operate a victim  
          witness assistance program.  The district attorney is the  
          designated agency in all but seven counties (three in probation  
          departments and one in a county sheriff's office).

          There appears to be a great unmet need for funding  
          community-based agencies that provide services to sex  
          trafficking victims and commercially sexually exploited persons.  
           The fund created by this bill could raise funds that individual  
          counties could disburse to address specific problems in their  
          areas.  

          7.Study of Homeless Young People Engaged in Survival-Sex  
            Prostitution in New York City
               
          A 2008 John Jay College study<1> of commercially, sexually  
          exploited homeless youth in New York city found that these  
          young people often sought out customers and found customers  
          for each other.  As many young men and boys were engaged in  
          survival sex as young women and girls in the study.  (This  
          finding is consistent with a 2004 study published by US  
          DOJ.)  Sexually exploited youth sought older white  
          customers who were perceived to have more money, although  
          the actual range of customers was relatively wide.  A 2012  
          New Yorker article reported that these young people in  
          lived in harsh conditions and risked becoming "lifers" on  


          -------------------------
          <1> https://www.ncjrs.gov/pdffiles1/nij/grants/225083.pdf,  pp  
          48-49,. 32-102.








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          the street.  Programs and services for them were scarce and  
          typically short-term.<2> 
          
          8.Limited Studies of the Demographics of Prostitution  
            Customers

          A draft University of Chicago study by Steven Levitt and  
          Sudhir Alladi Venkatesh (Freakonomics) examined  
          street-level prostitution in certain Chicago neighborhoods  
          known for prostitution, including a neighborhood where  
          prostitution was controlled by pimps and a neighborhood  
          where prostitutes were independent.   Levitt estimated that  
          there were 1,200 acts of prostitution per arrest,  
          indicating that even street-level prostitution customers  
          generally need not fear arrest.  The Chicago study noted  
          that more upscale prostitution occurred over the Internet  
          and through escort services, where the likelihood of arrest  
          was low.  Freakonomics publications later noted that the  
          cost of prostitution had declined in recent decades, likely  
          indicating that customers were spread across economic  
          classes. 

          Levitt found "many men making a few visits and a small  
          number of men making very frequent visits."  He found that  
          25 johns were arrested twice and 2,969 johns were arrested  
          once.  As in the Western Criminology Review study discussed  
          in Comment # 6, Leavitt concluded that some men may have  
          learned from one arrest how to avoid another.    However,  
          some johns may have been arrested multiple times because  
          they were not good at distinguishing between an actual  
          prostitute and a police decoy.

          A 2008 review in the Electronic Journal of Human Sexuality  
          of studies from cities across the country found wide  
          variance in education, income and ethnicity among  
          prostitution customers.  There were some regional  
          differences, such as lower levels of education in  
          Indianapolis, marginally higher income in Portland, Oregon.

          9.Recidivism Studies on Persons Convicted of Purchasing Sex  
            - Effects of Special Programs

          A study in 2002 in the Western Criminology Review of a now  



          -------------------------
          <2> http://www.newyorker.com/magazine/2012/12/10/netherland








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          defunct first-offender program in Portland, Oregon (SEEP)  
          found very low recidivism rates for all prostitution  
          arrestees, regardless of whether they participated in SEEP,  
          were referred to SEEP but did not attend, or were not  
          referred to the program.  The study considered only a  
          two-year period and a relatively small number of offenders.  
           The researchers inferred from the data that an arrest, per  
          se, could have deterred offenders, as prostitution offenses  
          involve significant shame.  The authors, however, also  
          questioned if the offenders continued to solicit  
          prostitutes but simply learned how to avoid arrest.  They  
          could not say whether the education from the SEEP program  
          would have led the participants to a avoid prostitution for  
          a substantial time in the future.

          A number of other cities adopted special first-offender  
          prostitution diversion programs that educate "johns" about  
          the harms caused by or attendant to the commercial sex  
          trade.  The San Francisco program - First Offender  
          Prostitution Program (FOPP) - was one of the first of these  
          programs.  The program required men arrested for the first  
          time for a prostitution offense to attend a one-day course  
          of the harms caused or exacerbated by the demand for  
          prostitution.  Men who completed the course were diverted  
          out of the criminal justice system.  A report on the San  
          Francisco FOPP conducted by Abt Associates concluded that  
          program was well run and effective. The claims of a sharp  
          drop in recidivism in the Abt report have been harshly  
          criticized and questioned.  One study by researchers from  
          DePaul University and American University found  
          methodological flaws in the Abt report.   The study from  
          the Western Criminology Review (noted above) found that  
          recidivism rates attributable to FOPP programs are  
          difficult to measure, as johns arrested for prostitution  
          offenses can easily learn how to avoid arrest.  Further,  
          the increasing shift of prostitution to the Internet makes  
          it difficult to measure recidivism.

          DOES RESEARCH INDICATE THAT AN ARREST, PER SE, MAY BE A  
          SUBSTANTIAL DETERRENT FOR MEN WHO SOLICIT PROSTITUTES?

          IS THERE DATA ABOUT THE EFFECT OF MANDATORY MINIMUM  
          PENALTIES IN EXISTING LAW FOR REPEAT PROSTITUTION  
          OFFENDERS?









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          10.  Jail Space is a Limited Commodity
          
          This bill requires minimum jail terms for defendants  
          sentenced for prostitution offenses and requires 24 or 48  
          jail terms as a condition of probation in such cases.   
          County jails in California, especially in urban areas, have  
          been chronically overcrowded for some time.

          Realignment required many defendants to serve their felony  
          sentences in jail, thereby straining already crowded jails.  
           Proposition 47 made many drug possession and specified  
          theft crimes misdemeanors, easing some of the pressure.   
          Nevertheless, it has been reported that many Prop. 47  
          inmates do not spend significant portions of their  
          misdemeanor sentences because there is not enough room in  
          the jails. Judges in drug courts and cases arising under  
          the Substance Abuse and Crime Prevention Act of 2000  
          (Proposition 36) have argued that defendants are refusing  
          to accept probation and treatment because they are likely  
          to serve only a small portion of any misdemeanor drug  
          possession sentence.

          This bill requires minimum terms in prostitution cases,  
          essentially creating a legislative priority for  
          incarcerating these defendants over others where jail space  
          is limited.   The relatively short mandatory minimum terms  
          can be a burden to jails because it can take many hours to  
          process a defendant into jail and then out.  Deputies who  
          operate jail would need to expend significant resources to  
          process the cases covered by this bill. 

          11.  Enhancement for Human Trafficking, or Taking a Minor from  
             his or her Parents, for Prostitution on the Grounds of, or  
             within 1,000 feet of a School

          The basic human trafficking law was enacted by AB 22 (Lieber)  
          Ch. 240, Stats. 2005.  AB 22 provided that the essence of human  
          trafficking is the deprivation of the victim's liberty in order  
          to place the person in sexual commerce or obtain labor.  The  
          human trafficking law was amended by Proposition 35 in 2012.    
          The initiative greatly increased penalties, set special  
          procedures and rules of evidence and eliminated the element of  
          deprivation of liberty if the victim is a minor.  The penalties  









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          established by the initiative are especially comprehensive and  
          arguably cover the full range of circumstances in human  
          trafficking.   Human trafficking of minors can be done through  
          inducements, persuasion and the like.  The use of coercion,  
          fraud, force or duress against a minor does, however, subjects  
          as defendant to especially severe penalties, including life  
          terms.  

          This bill would direct the court to impose a sentence  
          enhancement of one year if the defendant has been convicted of  
          human trafficking and the crime occurred on the grounds of a  
          school, or within 1,000 feet of a school.  The enhancement also  
          applies to taking a minor from his or her parents for purposes  
          of prostitution (§ 267), a felony with a determinate term  
          sentence of  16 months, two years or three years. It appears,  
          however, that many, if not most, cases of taking a minor for  
          prostitution could be charged as human trafficking, as Section  
          267 is specifically included as a target offense in human  
          trafficking. 

          Human trafficking of a minor includes a relatively long list of  
          crimes involving commercial sex, including prostitution and  
          child pornography.  If the minor is brought into such activities  
          through "force, fear, fraud, deceit, coercion, violence, duress,  
          menace, or threat of unlawful injury to the victim or to another  
          person," the penalty is a term of 15-years-to-life in prison and  
          a fine of up to $500,000.  With mandatory penalty assessments, a  
          fine of $500,000 is actually a fine of over $2,000,000.  It is  
          hard to imagine that a trafficker could lure a minor into  
          commercial sex trade without at least deceit or fraud.  That is,  
          if the trafficker misrepresented what the minor would be doing  
          or the conditions under which they would be done, that would  
          clearly appear to be fraud and deceit.  

          It would appear that if very severe felony penalties would not  
          deter a potential human trafficker, an additional year in prison  
          would be of little consequence.  Further, many, if not all,  
          cases where a minor under the age of 14 is abducted for purposes  
          of prostitution would constitute kidnapping for purposes of  
          engaging in sexual conduct. That form of kidnapping if  
          punishable by a prison term of 5, 8 or 11 years if the minor is  
          under the age of 14.  Kidnapping per se - taking a person by  
          fore or fear - is punishable by a prison term of 3, 5 of 8  
          years.  (Pen. Code §§ 207-208.)  If kidnapping for a sex offense  









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          increases the danger of harm to a victim beyond that inherent in  
          the offense, it is punishable by a life term.

          The punishment for human trafficking of a minor, when the crime  
          does not involve some sort of deceit, coercion or force, is  
          still relatively severe - 5, 8 or 12 years and a fine of up to  
          $500,000 (again over $2,000,000 with mandatory penalty  
          assessments).  If this bill is enacted, the prison term could  
          perhaps be 13 years instead of 12 in a determinate sentence.   
          For a life term, the defendant would be eligible for parole in  
          16 years, not 15.  Again, it is doubtful that a possible  
          additional year in prison would change a perpetrator's decision  
          to engage in human trafficking of a minor in light of the severe  
          existing penalties.

          California sentencing law is so complex that an enhancement for  
          committing human trafficking on or near a school may not  
          necessarily result in additional punishment.  In some cases,  
          imposition of the enhancement could result in a lower penalty.   
          The imposition of the prison term for a crime and enhancements  
          attached to that term require the court to make a series of  
          inter-related decision.  The process becomes particularly  
          elaborate when the defendant was convicted of multiple crimes  
          and numerous enhancements apply.

          For this bill, the most important sentencing rule is the  
          prohibition on "dual use of facts" - the use of one fact to  
          impose more than one punishment.  A close reading of many  
          enhancements would reveal that they could also be used as  
          factors in aggravation of the base term - the stated penalty  
          "triad."  The sentencing triad for the less egregious form of  
          human trafficking of a minor is 5, 8 or 12 years.  

          12. Vetoes of Related or Similar Bills
          
          Governor Brown has recently vetoed bills that included what were  
          essentially crimes and penalties that are largely redundant of  
          existing law.  Last session (2013-2014), the governor vetoed SB  
          473 (Block), which proposed to add human trafficking to the gang  
          laws.  (Any crime committed for the benefit of a gang is  
          punished by an enhancement or a life term.  SB 473 would have  
          added human trafficking to a list of crimes establish the  
          existence of a gang, per se.  Prosecutors seldom have any  
          trouble proving the existence of a gang under existing law.)   









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          Similar observations can be made about this bill that were made  
          about SB 473 Governor Brown stated:


               I am returning Senate Bill 473 without my signature.

               Under current law, human trafficking convictions  
               impose substantial punishment, up to 20 years for sex  
               trafficking offenses and 15 years-to-life for certain  
               crimes involving children. These sentences are more  
               than three times the punishment that existed two years  
               ago. SB 473 would add yet another set of enhancements,  
               the third in nine years. No evidence has been  
               presented to support these new penalties



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