California Assembly Bill AB1708 Amended / Bill

 BILL NUMBER: AB 1708AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 15, 2016 INTRODUCED BY Assembly Member Gonzalez JANUARY 25, 2016  An act to amend Section 784.7 of the Penal Code, relating to crimes.   An act to amend Section 647 of, and to add Section 266m to, the Penal Code, relating to disorderly conduct.  LEGISLATIVE COUNSEL'S DIGEST AB 1708, as amended, Gonzalez.  Criminal actions: venue.   Disorderly conduct: prostitution.   Existing law provides that a person who solicits or agrees to engage in or engages in any act of prostitution is guilty of disorderly conduct, a misdemeanor, punishable by imprisonment in the county jail for no more than 6 months or by a fine not exceeding $1,000, or by both that fine and imprisonment. Existing law also imposes increased minimum terms of imprisonment for a violation of that provision if a person has previously been convicted of soliciting or agreeing to engage in or engaging in any act of prostitution. Existing law defines "prostitution" to include any lewd act between persons for money or other consideration. Existing law additionally makes prostitution involving soliciting a minor punishable by imprisonment of not less than 2 days and not more than one year and a fine not exceeding $10,000. Existing law allows a court to, when the interests of justice are best served, reduce or eliminate the mandatory 2 days in the county jail.   This bill would recast those provisions to distinguish between a person who commits prostitution by providing money or other consideration and a person who commits prostitution by receiving money or other consideration. The bill would provide that prostitution committed by receiving money or other consideration is not a crime for a person under 18 years of age and that it is an affirmative defense that a person engaged in the acts constituting the offense did so due to being a victim of human trafficking. The bill would require a person who commits prostitution by providing money or other consideration to serve at least 72 hours in the county jail. The bill would expand the scope of prostitution involving soliciting a minor to include a situation where the person who was solicited is posing as a minor and the person engaged in the solicitation had specific intent to solicit a minor. The bill would provide that the provisions involving soliciting a minor apply only to persons who commit prostitution involving providing money or other consideration. The bill would require a person who commits prostitution involving soliciting a minor to serve a period of at least 72 hours in the county jail, and would prohibit the court from eliminating the mandatory minimum sentence. The bill would additionally make a person who commits prostitution by providing money or other consideration punishable by a minimum fine of $1,000. This bill would require those fines to be used by the county where the offense occurred for services for victims of human trafficking.   Existing law provides various penalties for human trafficking and sex trafficking offenses.   This bill would require a person convicted of a human trafficking offense, specified sex trafficking offenses, or certain felony human trafficking offenses, where any part of the violation takes place upon the grounds of, or within 1,000 feet of, a public or private elementary school, vocational, junior high, or high school during the hours that the school is open for classes or school-related programs, or at any time when minors are using the facility, to receive, in addition to any other penalty imposed, punishment of one year in state prison.   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.   Existing law governs venue in criminal actions. If more than one violation of any of specified criminal offenses occurs in more than one jurisdictional territory, the jurisdiction of any one of those offenses, and of any offenses properly joinable with that offense, shall be in any jurisdiction where at least one of the offenses occurred, as specified.   This bill would make technical, nonsubstantive changes to those provisions.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program:  no  yes  . THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 647 of the   Penal Code   is amended to read:  647. Except as provided in subdivision (l),  every   a  person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.  (b) (1) Who solicits or who agrees to engage in or who engages in any act of prostitution and provides money or other consideration.   (2) Who solicits or who agrees to engage in or who engages in any act of prostitution and receives money or other consideration.   (b) Who solicits or who agrees to engage in or who engages in any act of prostitution.   (3)    A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.  No   An  agreement to engage in an act of prostitution  shall constitute a violation of   does not violate  this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.  (4) Paragraph (2) of this subdivision does not apply to a person under 18 years of age.   (5) It shall be an affirmative defense to a violation of paragraph (2) that the acts constituting the violation were committed by a person as a result of being a victim of human trafficking, as defined by Section 236.1.   (6) Except as provided in subdivisions (k) and (m), a violation of paragraph (1) is punishable by imprisonment in a county jail for not less than 72 hours and not more than six months and by a fine not exceeding one thousand dollars ($1,000). The fine imposed shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking. Upon a violation of paragraph (1), a person is not eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than three days in a county jail. In all cases in which probation is granted, the court shall require as a condition of probation that the person be confined in a county jail for at least three days. The court shall not absolve a person who violates paragraph (1) from the obligation of spending at least 72 hours in confinement in a county jail.  (c) Who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms. (d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act. (e) Who lodges in any building, structure, vehicle, or place, whether public or private, without the permission of the owner or person entitled to the possession or in control of it. (f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way. (g) When a person has violated subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. The person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and degree of force which would be lawful were he or she effecting an arrest for a misdemeanor without a warrant. A person who has been placed in civil protective custody shall not thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement. This subdivision shall not apply to the following persons: (1) Any person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug. (2) Any person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to subdivision (f). (3) Any person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control. (h) Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, "loiter" means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered. (i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant. (j) (1) Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments. (2) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. (3) (A) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person. (B) Neither of the following is a defense to the crime specified in this paragraph: (i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these. (ii) The victim was not in a state of full or partial undress. (4) (A) Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress. (B) A person intentionally distributes an image described in subparagraph (A) when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image. (C) As used in this paragraph, "intimate body part" means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing. (D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies: (i) The distribution is made in the course of reporting an unlawful activity. (ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding. (iii) The distribution is made in the course of a lawful public proceeding. (5) This subdivision shall not preclude punishment under any section of law providing for greater punishment. (k) In any accusatory pleading charging a violation of subdivision (b), if the defendant has been once previously convicted of a violation of that subdivision, the previous conviction shall be charged in the accusatory pleading. If the previous conviction is found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or is admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 45 days and  shall   is  not  be  eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 45 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 45 days.  In no event does the   The  court  have the power to   shall not  absolve a person who violates this subdivision from the obligation of spending at least 45 days in confinement in a county jail. In any accusatory pleading charging a violation of subdivision (b), if the defendant has been previously convicted two or more times of a violation of that subdivision, each of these previous convictions shall be charged in the accusatory pleading. If two or more of these previous convictions are found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or are admitted by the defendant, the defendant shall be imprisoned in a county jail for a period of not less than 90 days and  shall   is  not  be  eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 90 days in a county jail. In all cases in which probation is granted, the court shall require as a condition thereof that the person be confined in a county jail for at least 90 days.  In no event does the   The    court  shall not  have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail. In addition to any punishment prescribed by this section, a court may suspend, for not more than 30 days, the privilege of the person to operate a motor vehicle pursuant to Section 13201.5 of the Vehicle Code for any violation of subdivision (b) that was committed within 1,000 feet of a private residence and with the use of a vehicle. In lieu of the suspension, the court may order a person's privilege to operate a motor vehicle restricted, for not more than six months, to necessary travel to and from the person's place of employment or education. If driving a motor vehicle is necessary to perform the duties of the person's employment, the court may also allow the person to drive in that person's scope of employment. (  l  ) (1) A second or subsequent violation of subdivision (j) is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment. (2) If the victim of a violation of subdivision (j) was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment. (m)  (1)    If a crime is committed in violation of  paragraph (1) of  subdivision (b) and the person who was solicited was a minor at the time of the offense, and if the defendant knew or should have known that the person who was solicited was a minor at the time of the offense,  or 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, the  violation is punishable by imprisonment in a county jail for not less than  two   days   72 hours  and not more than one  year, or   year and  by a fine not  less than one thousand dollars ($1,000) and not  exceeding ten thousand dollars  ($10,000),   or by both that   fine and imprisonment.   ($10,000). The fine imposed shall be deposited in the treasury of the county in which the offense occurred and used by the county to fund services for victims of human trafficking. Upon a violation of this subdivision, a person is not eligible for release upon completion of sentence, on probation, on parole, on work furlough or work release, or on any other basis until he or she has served a period of not less than 72 hours in a county jail. In all cases in which probation is granted, the court shall require as a condition of probation that the person be confined in a county jail for at least 72 hours. The court shall not absolve a person who is governed by this subdivision from the obligation of spending at least 72 hours in confinement in a county jail.   (2) The court may, in unusual cases, when the interests of justice are best served, reduce or eliminate the mandatory two days of imprisonment in a county jail required by this subdivision. If the court reduces or eliminates the mandatory two days' imprisonment, the court shall specify the reason on the record.   SEC. 2.   Section 266m is added to the   Penal Code   , to read:   266m. A person who is convicted of a felony violation of Section 236.1, for an offense committed against a minor, or Section 267, if the violation takes place on the grounds of, or within 1,000 feet of, a public or private elementary, vocational, junior high, or high school, during hours that the school is open for classes or school-related programs or at any time when minors are using the facility, shall receive, in addition to any other penalty imposed, punishment of one year in the state prison.   SEC. 3.   No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.   SECTION 1.   Section 784.7 of the Penal Code is amended to read: 784.7. (a) If more than one violation of Section 220, except assault with intent to commit mayhem, 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, shall be in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution shall present written evidence that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charged offenses from jurisdictions that do not have a written agreement from the district attorney shall be returned to that jurisdiction. (b) If more than one violation of Section 273a, 273.5, or 646.9 occurs in more than one jurisdictional territory, and the defendant and the victim are the same for all of the offenses, the jurisdiction of any one of those offenses, and of any offenses properly joinable with that offense, shall be in any jurisdiction where at least one of the offenses occurred. (c) If more than one violation of Section 236.1, 266h, or 266i occurs in more than one jurisdictional territory, the jurisdiction of any one of those offenses, and of any offenses properly joinable with that offense, shall be in any jurisdiction where at least one of the offenses occurred, subject to a hearing pursuant to Section 954, within the jurisdiction of the proposed trial. At the Section 954 hearing, the prosecution shall present written evidence that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charged offenses from jurisdictions that do not have a written agreement from the district attorney shall be returned to that jurisdiction. In determining whether all counts in the complaint should be joined in one county for prosecution, the court shall consider the location and complexity of the likely evidence, where the majority of the offenses occurred, the rights of the defendant and the people, and the convenience of, or hardship to, the victim or victims and witnesses.