HomeMy WebLinkAboutMINUTES - 06252013 - C.39AMENDED IN SENATE MAY 28, 2013
AMENDED IN SENATE MAY 8, 2013
SENATE BILL No. 473
Introduced by Senator Block
(Coauthor: Senator Anderson)
(Coauthor: Assembly Member Chávez)
February 21, 2013
An act to amend Section 186.22 of, and to add Section 266m to, of
the Penal Code, relating to human trafficking.
legislative counsel’s digest
SB 473, as amended, Block. Human trafficking.
Existing law, as amended by Proposition 21, as approved by the voters
at the March 7, 2000, statewide primary election, provides that any
person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of
criminal gang activity, and who willfully promotes, furthers, or assists
in any felonious criminal conduct by members of that gang, shall be
punished, as specified. Existing law defines “a pattern of criminal gang
activity” as the commission of, attempted commission of, conspiracy
to commit, or solicitation of, sustained juvenile petition for, or
conviction of, 2 or more listed offenses. Proposition 21 may be amended
by a statute passed by a 2⁄3 vote of the membership of each house of the
Legislature.
This bill would add pimping, pandering, and human trafficking as
offenses that may be used to establish a pattern of criminal gang activity.
Because this bill would amend Proposition 21, it therefore the bill
requires a 2⁄3 vote.
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Existing law provides various penalties for human trafficking and
sex trafficking offenses.
This bill would require that any person convicted of a human
trafficking offense or a specified sex trafficking offense where any part
of the violation takes place upon the grounds of, or within 1,000 feet
of, a public or private elementary school, vocational, junior high, or
high school during the hours that the school is open for classes or
school-related programs, or at any time when minors are using the
facility, receive, in addition to any other penalty imposed, punishment
of 3 years in state prison.
Because this bill would change the definition of a crime and require
a higher level of service from local prosecutors in pleading and proving
the enhancement, it would impose a state-mandated local program.
The bill would also correct cross-references and make conforming
changes.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: 2⁄3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
line 1 SECTION 1. Section 186.22 of the Penal Code, as amended
line 2 by Section 2 of Chapter 361 of the Statutes of 2011, is amended
line 3 to read:
line 4 186.22. (a) Any person who actively participates in any
line 5 criminal street gang with knowledge that its members engage in
line 6 or have engaged in a pattern of criminal gang activity, and who
line 7 willfully promotes, furthers, or assists in any felonious criminal
line 8 conduct by members of that gang, shall be punished by
line 9 imprisonment in a county jail for a period not to exceed one year,
line 10 or by imprisonment in the state prison for 16 months, or two or
line 11 three years.
line 12 (b) (1) Except as provided in paragraphs (4) and (5), any person
line 13 who is convicted of a felony committed for the benefit of, at the
line 14 direction of, or in association with any criminal street gang, with
line 15 the specific intent to promote, further, or assist in any criminal
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line 1 conduct by gang members, shall, upon conviction of that felony,
line 2 in addition and consecutive to the punishment prescribed for the
line 3 felony or attempted felony of which he or she has been convicted,
line 4 be punished as follows:
line 5 (A) Except as provided in subparagraphs (B) and (C), the person
line 6 shall be punished by an additional term of two, three, or four years
line 7 at the court’s discretion.
line 8 (B) If the felony is a serious felony, as defined in subdivision
line 9 (c) of Section 1192.7, the person shall be punished by an additional
line 10 term of five years.
line 11 (C) If the felony is a violent felony, as defined in subdivision
line 12 (c) of Section 667.5, the person shall be punished by an additional
line 13 term of 10 years.
line 14 (2) If the underlying felony described in paragraph (1) is
line 15 committed on the grounds of, or within 1,000 feet of, a public or
line 16 private elementary, vocational, junior high, or high school, during
line 17 hours in which the facility is open for classes or school-related
line 18 programs or when minors are using the facility, that fact shall be
line 19 a circumstance in aggravation of the crime in imposing a term
line 20 under paragraph (1).
line 21 (3) The court shall order the imposition of the middle term of
line 22 the sentence enhancement, unless there are circumstances in
line 23 aggravation or mitigation. The court shall state the reasons for its
line 24 choice of sentencing enhancements on the record at the time of
line 25 the sentencing.
line 26 (4) Any person who is convicted of a felony enumerated in this
line 27 paragraph committed for the benefit of, at the direction of, or in
line 28 association with any criminal street gang, with the specific intent
line 29 to promote, further, or assist in any criminal conduct by gang
line 30 members, shall, upon conviction of that felony, be sentenced to
line 31 an indeterminate term of life imprisonment with a minimum term
line 32 of the indeterminate sentence calculated as the greater of:
line 33 (A) The term determined by the court pursuant to Section 1170
line 34 for the underlying conviction, including any enhancement
line 35 applicable under Chapter 4.5 (commencing with Section 1170) of
line 36 Title 7 of Part 2, or any period prescribed by Section 3046, if the
line 37 felony is any of the offenses enumerated in subparagraph (B) or
line 38 (C) of this paragraph.
line 39 (B) Imprisonment in the state prison for 15 years, if the felony
line 40 is a home invasion robbery, in violation of subparagraph (A) of
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line 1 paragraph (1) of subdivision (a) of Section 213; carjacking, as
line 2 defined in Section 215; a felony violation of Section 246; or a
line 3 violation of Section 12022.55.
line 4 (C) Imprisonment in the state prison for seven years, if the
line 5 felony is extortion, as defined in Section 519; or threats to victims
line 6 and witnesses, as defined in Section 136.1.
line 7 (5) Except as provided in paragraph (4), any person who violates
line 8 this subdivision in the commission of a felony punishable by
line 9 imprisonment in the state prison for life shall not be paroled until
line 10 a minimum of 15 calendar years have been served.
line 11 (c) If the court grants probation or suspends the execution of
line 12 sentence imposed upon the defendant for a violation of subdivision
line 13 (a), or in cases involving a true finding of the enhancement
line 14 enumerated in subdivision (b), the court shall require that the
line 15 defendant serve a minimum of 180 days in a county jail as a
line 16 condition thereof.
line 17 (d) Any person who is convicted of a public offense punishable
line 18 as a felony or a misdemeanor, which is committed for the benefit
line 19 of, at the direction of, or in association with any criminal street
line 20 gang, with the specific intent to promote, further, or assist in any
line 21 criminal conduct by gang members, shall be punished by
line 22 imprisonment in a county jail not to exceed one year, or by
line 23 imprisonment in the state prison for one, two, or three years,
line 24 provided that any person sentenced to imprisonment in a county
line 25 jail shall be imprisoned for a period not to exceed one year, but
line 26 not less than 180 days, and shall not be eligible for release upon
line 27 completion of sentence, parole, or any other basis, until he or she
line 28 has served 180 days. If the court grants probation or suspends the
line 29 execution of sentence imposed upon the defendant, it shall require
line 30 as a condition thereof that the defendant serve 180 days in a county
line 31 jail.
line 32 (e) As used in this chapter, “pattern of criminal gang activity”
line 33 means the commission of, attempted commission of, conspiracy
line 34 to commit, or solicitation of, sustained juvenile petition for, or
line 35 conviction of two or more of the following offenses, provided at
line 36 least one of these offenses occurred after the effective date of this
line 37 chapter and the last of those offenses occurred within three years
line 38 after a prior offense, and the offenses were committed on separate
line 39 occasions, or by two or more persons:
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line 1 (1) Assault with a deadly weapon or by means of force likely
line 2 to produce great bodily injury, as defined in Section 245.
line 3 (2) Robbery, as defined in Chapter 4 (commencing with Section
line 4 211) of Title 8.
line 5 (3) Unlawful homicide or manslaughter, as defined in Chapter
line 6 1 (commencing with Section 187) of Title 8.
line 7 (4) The sale, possession for sale, transportation, manufacture,
line 8 offer for sale, or offer to manufacture controlled substances as
line 9 defined in Sections 11054, 11055, 11056, 11057, and 11058 of
line 10 the Health and Safety Code.
line 11 (5) Shooting at an inhabited dwelling or occupied motor vehicle,
line 12 as defined in Section 246.
line 13 (6) Discharging or permitting the discharge of a firearm from
line 14 a motor vehicle, as defined in subdivisions (a) and (b) of Section
line 15 26100.
line 16 (7) Arson, as defined in Chapter 1 (commencing with Section
line 17 450) of Title 13.
line 18 (8) The intimidation of witnesses and victims, as defined in
line 19 Section 136.1.
line 20 (9) Grand theft, as defined in subdivision (a) or (c) of Section
line 21 487.
line 22 (10) Grand theft of any firearm, vehicle, trailer, or vessel.
line 23 (11) Burglary, as defined in Section 459.
line 24 (12) Rape, as defined in Section 261.
line 25 (13) Looting, as defined in Section 463.
line 26 (14) Money laundering, as defined in Section 186.10.
line 27 (15) Kidnapping, as defined in Section 207.
line 28 (16) Mayhem, as defined in Section 203.
line 29 (17) Aggravated mayhem, as defined in Section 205.
line 30 (18) Torture, as defined in Section 206.
line 31 (19) Felony extortion, as defined in Sections 518 and 520.
line 32 (20) Felony vandalism, as defined in paragraph (1) of
line 33 subdivision (b) of Section 594.
line 34 (21) Carjacking, as defined in Section 215.
line 35 (22) The sale, delivery, or transfer of a firearm, as defined in
line 36 Article 1 (commencing with Section 27500) of Chapter 4 of
line 37 Division 6 of Title 4 of Part 6.
line 38 (23) Possession of a pistol, revolver, or other firearm capable
line 39 of being concealed upon the person in violation of Section 29610.
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line 1 (24) Threats to commit crimes resulting in death or great bodily
line 2 injury, as defined in Section 422.
line 3 (25) Theft and unlawful taking or driving of a vehicle, as defined
line 4 in Section 10851 of the Vehicle Code.
line 5 (26) Felony theft of an access card or account information, as
line 6 defined in Section 484e.
line 7 (27) Counterfeiting, designing, using, or attempting to use an
line 8 access card, as defined in Section 484f.
line 9 (28) Felony fraudulent use of an access card or account
line 10 information, as defined in Section 484g.
line 11 (29) Unlawful use of personal identifying information to obtain
line 12 credit, goods, services, or medical information, as defined in
line 13 Section 530.5.
line 14 (30) Wrongfully obtaining Department of Motor Vehicles
line 15 documentation, as defined in Section 529.7.
line 16 (31) Prohibited possession of a firearm in violation of Chapter
line 17 2 (commencing with Section 29800) of Division 9 of Title 4 of
line 18 Part 6.
line 19 (32) Carrying a concealed firearm in violation of Section 25400.
line 20 (33) Carrying a loaded firearm in violation of Section 25850.
line 21 (34) Pimping in violation of Section 266h.
line 22 (35) Pandering in violation of Section 266i.
line 23 (36) Human trafficking in violation of Section 236.1.
line 24 (f) As used in this chapter, “criminal street gang” means any
line 25 ongoing organization, association, or group of three or more
line 26 persons, whether formal or informal, having as one of its primary
line 27 activities the commission of one or more of the criminal acts
line 28 enumerated in paragraphs (1) to (25), inclusive, or (31) to (36),
line 29 inclusive, of subdivision (e), having a common name or common
line 30 identifying sign or symbol, and whose members individually or
line 31 collectively engage in or have engaged in a pattern of criminal
line 32 gang activity.
line 33 (g) Notwithstanding any other law, the court may strike the
line 34 additional punishment for the enhancements provided in this
line 35 section or refuse to impose the minimum jail sentence for
line 36 misdemeanors in an unusual case where the interests of justice
line 37 would best be served, if the court specifies on the record and enters
line 38 into the minutes the circumstances indicating that the interests of
line 39 justice would best be served by that disposition.
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line 1 (h) Notwithstanding any other provision of law, for each person
line 2 committed to the Division of Juvenile Facilities for a conviction
line 3 pursuant to subdivision (a) or (b) of this section, the offense shall
line 4 be deemed one for which the state shall pay the rate of 100 percent
line 5 of the per capita institutional cost of the Division of Juvenile
line 6 Facilities, pursuant to Section 912.5 of the Welfare and Institutions
line 7 Code.
line 8 (i) In order to secure a conviction or sustain a juvenile petition,
line 9 pursuant to subdivision (a) it is not necessary for the prosecution
line 10 to prove that the person devotes all, or a substantial part, of his or
line 11 her time or efforts to the criminal street gang, nor is it necessary
line 12 to prove that the person is a member of the criminal street gang.
line 13 Active participation in the criminal street gang is all that is
line 14 required.
line 15 (j) A pattern of gang activity may be shown by the commission
line 16 of one or more of the offenses enumerated in paragraphs (26) to
line 17 (30), inclusive, of subdivision (e), and the commission of one or
line 18 more of the offenses enumerated in paragraphs (1) to (25),
line 19 inclusive, or (31) to (36), inclusive, of subdivision (e). A pattern
line 20 of gang activity cannot be established solely by proof of
line 21 commission of offenses enumerated in paragraphs (26) to (30),
line 22 inclusive, of subdivision (e), alone.
line 23 (k) This section shall become operative on January 1, 2014.
line 24 SEC. 2. Section 266m is added to the Penal Code, to read:
line 25 266m. (a) Any person who is convicted of a felony violation
line 26 of Section 236.1, 266, 266a, 266b, 266c, 266d, 266e, 266f, 266g,
line 27 266h, 266i, or 266j, where any part of the violation takes place on
line 28 the grounds of, or within 1,000 feet of, a public or private
line 29 elementary, vocational, junior high, or high school, during the
line 30 hours in which the facility is open for classes or school-related
line 31 programs or when minors are using the facility, shall receive, in
line 32 addition to any other penalty imposed, punishment of three years
line 33 in state prison.
line 34 (b) A violation of this section does not require physical presence
line 35 on school grounds or within 1,000 feet of school grounds.
line 36 SEC. 3.
line 37 SEC. 2. No reimbursement is required by this act pursuant to
line 38 Section 6 of Article XIII B of the California Constitution because
line 39 the only costs that may be incurred by a local agency or school
line 40 district will be incurred because this act creates a new crime or
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line 1 infraction, eliminates a crime or infraction, or changes the penalty
line 2 for a crime or infraction, within the meaning of Section 17556 of
line 3 the Government Code, or changes the definition of a crime within
line 4 the meaning of Section 6 of Article XIII B of the California
line 5 Constitution.
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