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california legislation > AB 1571

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Date of Hearing: March 27, 2012
Counsel: Milena Blake


ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair

AB 1571 (Donnelly) - As Amended: March 22, 2012


SUMMARY
: Increases the penalties for human trafficking
involving a commercial sex act and creates a new offense of
human smuggling. Specifically, this bill :

1)Specifies that trafficking a person under the age of 18 where
the human trafficking does not involve a commercial sex act is
punishable by imprisonment in the state prison for 4, 6 or 8
years.

2)States that trafficking a person 18 years or older where the
human trafficking involves a commercial sex act is punishable
by imprisonment in the state prison for 10, 12 or 14 years.

3)States that trafficking a person under the age of 18 where the
human trafficking involves a commercial sex act is punishable
by imprisonment in the state prison for 25 years to life.

4)States that a person who commits rape or unlawful sexual
intercourse with a minor, as specified, while engaged in human
trafficking, as specified, or human smuggling, shall be
punished by imprisonment in the state prison for 10 years, in
addition to any other penalty.

5)Specifies that if the individual engages in unlawful sexual
intercourse with a minor while engaged in human trafficking or
smuggling, and would otherwise be eligible to serve his or her
sentence in county jail, he or she shall serve the sentence in
state prison.

6)Defines "human smuggling" as the importation of people into
the country via the deliberate evasion of immigration law,
including bringing undocumented aliens into the country, as
well as the unlawful transportation and harboring of
undocumented aliens already in the country.









AB 1571
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EXISTING LAW:

1)Prohibits any person from taking compensation to knowingly
make a false or misleading material statement or misleading
material statement or assertion of fact in the preparation of
an immigration matter which statement or assertion is
detrimentally relied upon by another. Violation of this
section is a misdemeanor is punishable by imprisonment in the
county jail not exceeding six months, a fine not exceeding
$2,500, or by both imprisonment and a fine. (Penal Code
Section 653.55)

2)Provides that any person who deprives or violates the personal
liberty of another with the intent to effect or maintain a
felony violation of enticement of a minor into prostitution,
pimping or pandering, abduction of a minor for the purposes of
prostitution, extortion, or to obtain forced labor or
services, is guilty of human trafficking. İPenal Code Section
236.1(a)]:

a) States that violation of this section is punishable by
imprisonment in the state prison for three, four, or five
years. İPenal Code Section 236.1(b).]

b) States that violation of this section where the victim
is under 18 years of age at the time of the commission of
the offense if punishable by imprisonment in the state
prison for four, six, or eight years. İPenal Code Section
236.1(c).]

3)States that any person who commits human trafficking involving
a commercial sex act where the victim was under the age of 18
years at the time of the commission of the offense shall be
punished by a fine of not more than $100,000 in addition to
other penalties previously specified. İPenal Code Section
236.1(g)(1).]

4)States unlawful deprivation or violation of the personal
liberty of another includes substantial and sustained
restriction of another's liberty accomplished through fraud,
deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim or to another person, under
circumstances where the person receiving or apprehending the
threat reasonably believes that it is likely that the person
making the threat would carry it out. İPenal Code Section








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236.1(d).]

5)Defines "commercial sex act" as any sexual conduct on account
of which anything of value is given or received by any person.
İPenal Code Section 236.1(g)(2).]

FISCAL EFFECT : Unknown

COMMENTS :

1)Author's Statement : According to the author, "AB 1571 takes
important steps to bring justice to perpetrators of the
vicious crimes of rape and human sex trafficking especially
against children. With busy ports, large immigrant communities
and a porous international border, California has a unique and
vital role to play in putting an end to this inexcusable crime
against innocence, human dignity and liberty. For the sake of
the victims, the communities marred by this exploitation and
future generations of Californians, it is critical that
perpetrators be brought to justice. AB 1571 will help law
enforcement and communities by keeping these criminals off the
streets."

2)Distinction between "Trafficking" and "Smuggling" : Although
"trafficking" and "smuggling" may be used interchangeably in
everyday usage, they are legally separate and distinct
concepts, and law enforcement officers in California are
trained to understand these distinctions.

According to the Commission on Peace Officer Standards and
Training (POST) Guidelines on Law Enforcement Responses to
Human Trafficking, smuggling has several distinguishing
characteristics: (1) the relationship between the parties ends
at the destination when fees are paid; (2) the transaction is
made for the smuggling service; (3) the person is free to
leave upon payment of the fee; and (4) it is a crime against
the national borders. İPOST, Guidelines on Law Enforcement
Response to Human Trafficking (2008), p. 4-5.] In contrast,
trafficking is: (1) the relationship does not end at the
destination; it involves compelled labor or service through
the use of force, fraud or coercion; (2) debts are incurred;
(3) the person is not free to leave and becomes enslaved; (4)
it is a crime against persons; (5) it does not require
movement across a state or international border. (ibid.)









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The provisions of this bill involve actions related to both
smuggling and trafficking. As mentioned in the POST
guidelines, smuggling is a crime against national borders, the
protection of which is with the sole discretion of the United
States Attorney General, as discussed below. It is also worth
noting that while there are extensive training guidelines for
California law enforcement related to human trafficking, there
is no such training related to smuggling, human or otherwise.


3)Immigration Issues Are Committed to the Absolute Discretion of
the US Attorney General:
In State of California v. United
States, 104 F.3d 1086 (9th Circuit 1996), California alleged
that the US Attorney General failed to perform his or her
statutory duties under specified sections of Title 8, United
States Code, by not conducting deportation proceedings
immediately following the conviction of aliens eligible for
deportation and for failing to take into custody aliens
convicted of aggravated felonies upon their release from state
incarceration pending a determination of deportability and
other related issues.

The Ninth Circuit Court of Appeals rejected California's
argument, stating that "agency refusals to institute
investigation or enforcement proceedings fall within the
exception to reviewability provided by 5 U.S.C. Section
701(a)(2) for action 'committed to agency discretion.' The
Court held that an agency's decision not to prosecute or
enforce, whether through civil or criminal process, is a
decision generally committed to the agency's absolute
discretion . . . these issues are not subject to judicial
review." (Id at p. 1094.)

Similarly, the United States Supreme Court has held that "our
cases have long recognized the preeminent role of the Federal
Government with respect to the regulation of aliens within our
borders." İSee, e.g., Matthews v. Diaz, 426 U.S. 67 (1976).]
States may not impose auxiliary burdens on aliens. (Toll v.
Moreno, 458 U.S. 1 (1982).)

In Williams v. Williams, 328 F. Supp. 1380 (U.S. District Court
for the District of Virgin Islands), the Court held that
non-compliance with immigration laws was not a reason to deny
the parties the jurisdiction of the civil courts of the United
States. "To deny an alien access to our divorce courts on the








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sole ground that he may be in violation of an immigration law
would be to deny both due process and the equal protection of
the laws. Such a denial would attach a civil disability to
some aliens without the prior benefit of the procedures
designed or the purpose of enforcing the immigration laws.
İSee 8 U.S.C. § 1251 et seq.; 8 C.F.R. pt. 241-44 (1970).]
The divorce court is patently an inappropriate forum in which
to attempt to reproduce these procedures. An exclusion from
court on this ground would also discriminate, without
compelling reason to do so, against persons who violate this
particular immigration law, as distinguished from persons who
violate any other law. The remedy for a violation of 8 U.S.C.
§ 1101(a)(15)(H) is deportation or other administrative
sanctions, not withdrawal of access to our divorce courts."
The Williams Court thus rejected using the state court system
to assist federal immigration authorities with the enforcement
of immigration law, a field fully occupied by the Federal
Government.

The Ninth Circuit Court of Appeals has affirmed that "power to
regulate immigration is unquestionably exclusively a federal
power. İT]he United States Constitution provides that
Congress shall have the power to . . . establish a uniform
Rule of Naturalization. U.S. Constitution, article I, § 8."
İCazarez-Guiterrez v. Ashcroft, 382 F. 3d 905 (2004).] The
Ninth Circuit has repeatedly recognized that the immigration
laws should be applied uniformly across the country, without
regard to the nuances of state law." (Id. at p.913.)

This bill is one of several bills in this Committee that have
attempted to use California State law enforcement resources in
the enforcement of federal immigration laws. As stated in a
long line of federal court cases, enforcement of immigration
laws is a matter entirely committed to the US Attorney
General. İSee, e.g., Takahashi v. Fish and Game Commission,
334 U.S. 410, 419 (1948); California v. United States, 104 F.
3d 1086 (9th Circuit 1996); New Jersey v. United States, 91
F. 3d 463 (3rd Circuit 1996).] Individual states may not
enact laws that impose an auxiliary burden upon the entrance
or residence of aliens that was never contemplated by
Congress. This was recently reiterated by the Ninth Circuit,
which upheld the injunction of Arizona's SB 1070, which, in
part, grants immigration enforcement authority to state and
local law enforcement, on grounds of federal preemption of
immigration law. İUnited States v. Arizona, (9th Cir. 2011)








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641 F.3d 339, cert. granted Dec. 12, 2011.]

4)Vagueness and Due Process : The "void for vagueness" doctrine
exists in the due process clause of the Fifth and Fourteenth
Amendments. It is a general principle of statutory law that
it must be definite to be valid. "A statute is void for
vagueness when its prohibition is so vague as to leave an
individual without knowledge of the nature of activity that is
prohibited. To pass constitutional muster, statutes
challenged as vague must give a person of ordinary
intelligence a reasonable opportunity to know what is
prohibited and provide explicit standards for those who apply
it to avoid arbitrary and discriminatory enforcement." İ16A
Am.Jur. 2nd (2006) Constitutional Law §920; Maroney v.
University Interscholastic League (5th Cir. 1985) 764 F.2nd
403.] "The due process doctrine concerning vagueness of
statutes incorporates notions of fair notice or warning and
requires legislatures to set reasonably clear guidelines for
law enforcement officials and tiers of fact in order to
prevent arbitrary and discriminatory enforcement; there is a
denial of due process where inherently vague statutory
language permits selective law enforcement." İSmith v. Goguen
(1974) 415 U.S. 566, 573.]

"It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly
defined. Vague laws offend several important values. First,
because we assume that man is free to steer between lawful and
unlawful conduct, we insist that laws give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. Second, if
arbitrary and discriminatory enforcement is to be prevented,
laws must provide explicit standards for those who apply them.
A vague law impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and
subjective basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague
statute 'abutİs] upon sensitive areas of basic first amendment
freedoms, it 'operates to inhibit the exercise of İthose]
freedoms.' Uncertain meanings inevitably lead citizens to
'steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked."
İGrayned v. City of Rockford (1972) 408 U.S. 104, 108.]









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In its present form, this bill would require imposing an
additional 10 year penalty for engaging in specified sex
offenses while engaged in "human smuggling." The definition
of human smuggling in the bill includes "the unlawful
transportation" of undocumented aliens already in the country.
There is no definition of unlawful transportation, and there
is no definition found elsewhere in the penal code. It is
unclear what behavior would be prohibited under this section.
Would driving a person who is undocumented in a car without
seatbelts violate this provision? Would driving a person who
is undocumented in a car at night without the headlights on?
As a reasonable individual would not know if he or she is
violating this section, a court would likely strike down this
provision as vague.

5)Effect on Criminal Justice Realignment Act : Criminal justice
realignment created two classifications of felonies: those
punishable in county jail and those punishable in state
prison. Realignment limited which felons can be sent to state
prison, thus requiring that more felons serve their sentences
in county jails. The new law applies to qualified defendants
who commit qualifying offenses and who were sentenced on or
after October 1, 2011. Specifically, sentences to state
prison are now mainly limited to registered sex offenders and
individuals with a current or prior serious or violent
offense. In addition to the serious, violent, registerable
offenses eligible for state prison incarceration, there are
approximately 70 felonies which have been specifically
excluded from eligibility for local custody (i.e., the
sentence for which must be served in state prison).

This bill specifies that notwithstanding the realignment
provisions of Penal Code Section 1170(h), the sentence for
this offense must be served in state prison. Thus, this bill
creates a new exclusion for local custody eligibility and, as
such, conflicts with the policy change created by realignment
to shift the responsibility for low-level adult offenders from
the state to the counties.

6)On-going Concerns for Prison Overcrowding : In November 2006,
plaintiffs in two ongoing class action lawsuits - Plata v.
Brown (involving inmate medical care) and Coleman v. Brown
(involving inmate mental health care) - filed motions for the
courts to convene a three-judge panel pursuant to the U.S.
Prison Litigation Reform Act. The plaintiffs argue that








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persistent overcrowding in the state's prison system was
preventing the California Department of Corrections and
Rehabilitation (CDCR) from delivering constitutionally
adequate health care to inmates. The three-judge panel
declared that overcrowding in the state's prison system was
the primary reason that CDCR was unable to provide inmates
with constitutionally adequate health care. In January 2010,
the three-judge panel issued its final ruling ordering the
State of California to reduce its prison population by
approximately 50,000 inmates in the next two years.
İColeman/Plata vs. Schwarzenegger (2010) No. Civ S-90-0520 LKK
JFM P/NO. C01-1351 THE.]

The United State Supreme Court upheld the decision of the
three-judge panel, 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. İBrown v. Plata (2011) 131 S.Ct. 1910,
1939; 179 L.Ed.2d 969, 999.]

According to a recent report by the Legislative Analyst's
Office, "Based on CDCR's current population projections, it
appears that it will eventually reach the court-imposed
population limit, though not by the June 2013 deadline." İSee
Refocusing CDCR After the 2011 Realignment, Feb. 23, 2012,
pp.3; <
http://lao.ca.gov/analysis/2012/crim_justice/cdcr-022312.pdf >.]
"In particular, the projections show the state missing the
final population limit of no more than 110,000 inmates housed
in state prisons by June 2013. Specifically, the projections
show the state exceeding this limit by about 6,000 inmates.
However, the projections indicate that the state will meet the
court-imposed limit by the end of 2014." (Id. at p. 9.)

"While the state has undergone various changes to reduce
overcrowding prior to the passage of the realignment
legislation-including transferring inmates to out-of-state
contract facilities, construction of new facilities, and
various statutory changes to reduce the prison population-the
realignment of adult offenders is the most significant change
undertaken to reduce overcrowding." (Id. at p. 8.) Because
the provisions of this bill require a defendant to serve his
or her sentence in state prison, it appears to aggravate the
on-going problem of prison overcrowding.









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7)Related Legislation :

a) AJR 1 (Donnelly) urges Congress and the President of the
United States to restore full funding for the federal State
Criminal Alien Assistance Program and to fully reimburse
states for the cost of incarcerating undocumented
criminals. AJR 1 failed passage on the Assembly Floor.

b) AJR 17 (Solorio), Chapter 124, Statutes of 2011, urged
Congress and the President of the United States to increase
funding for various law enforcement and crime prevention
programs and to fully reimburse states for the cost of
incarcerating undocumented criminals.

c) AB 26 (Donnelly) makes it a felony under specified
circumstances for an undocumented immigrant to be present
on public or private land, and would prohibit public
officials and agencies from adopting a policy that would
restrict enforcement of federal immigration law. AB 26
failed passage in the Assembly Judiciary Committee.

d) AB 1031 (Donnelly) requires an arresting authority
report the presence of an individual to the United States
Immigration and Customs Enforcement if that individual is
arrested for driving under the influence (DUI) or DUI with
injury, as specified, and the individual fails to provide
the arresting authority with the appropriate documentation
demonstrating his or her legal presence in the United
States. AB 1031 failed passage in this Committee.

8)Previous Legislation :

a) AB 1082 (Garrick), of the 2007-08 Legislative Session,
would have permitted federal and local law enforcement
officials to cooperate with enforcement of immigration
laws, provided that the Director of Homeland Security
develop a program to reimburse local law enforcement in an
amount equal to the prorated salary of the local officer
for time the officer spent attending training on the
federal Immigration Reform and Immigrant Responsibility Act
of 1996. AB 1082 failed passage in this Committee.

b) AB 648 (Adams), of the 2007-08 Legislative Session,
would have created a new 10-year sentencing enhancement for
any felony conviction of a person who was previously








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convicted of a felony in California for which he or she was
deported from the United States. AB 648 failed passage in
this Committee.

c) AB 39 (Benoit), of the 2007-08 Legislative Session,
would have required the Secretary of CDCR to demand in
writing that the US Attorney General take federal custody
of any undocumented inmate incarcerated in California's
correctional system. AB 39 failed passage in this
Committee.

d) AB 332 (Bogh) of the 2005-06 Legislative Session, would
have provided that it would be the policy of California
that no law enforcement entity or any local governing body
may adopt any ordinance, rule, regulation or order, or
otherwise implement a policy that prohibits law enforcement
officers from initiating action to discover a person's
immigration status, or that prohibits a law enforcement
officer from arresting or booking a person for entering the
United States illegally. AB 332 failed passage in this
Committee.

e) SB 1314, Chapter 567, Statutes of 1994, requires state
correctional agencies, within 48 hours of establishing
identifying information, to transfer undocumented felons to
the custody of the US Attorney General and required that
evaluation and classification procedures cease once
identity as undocumented felons has been established. This
law was contingent upon enactment of federal legislation
requiring the United States government to imprison in the
federal prison system any undocumented alien convicted of a
felony in California.

f) SB 1258 (Torres), of the 1993-94 Legislative Session,
would have required that all undocumented aliens be
transferred to the United States government within 48 hours
of identification as an undocumented alien. SB 1258 was
vetoed.

REGISTERED SUPPORT / OPPOSITION :

Support

California Probation, Parole and Correctional Association
4 Private Individuals








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Opposition

American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Coalition for Humane Immigrant Rights of Los Angeles

Analysis Prepared by
: Milena Blake / PUB. S. / (916) 319-3744