People v. N.C.

Filed 11/2/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re N.C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, A146637
Plaintiff and Respondent, (Los Angeles County Super. Ct.
v. No. PJ51576)
N.C., (Contra Costa County Super. Ct.
Defendant and Appellant. No. J1500733)
The Californians Against Sexual Exploitation Act (CASE Act), enacted by the
voters of the state as Proposition 35 at the general election on November 6, 2012,1
increased penalties for human trafficking, authorized the collection of fines to be used for
victim services and law enforcement, required persons convicted of trafficking to register
as sex offenders, and required such offenders to provide information regarding Internet
access and identities they use in online activities. The CASE Act also added section 1161
to the Evidence Code (section 1161). Subdivision (a) of that statute, which as we later
explain, was amended by the Legislature in 2013, 2 now declares that evidence that a
victim of human trafficking “has engaged in any commercial sexual act as a result of
1
Proposition 35 added section 1161 to the Evidence Code, amended Penal Code
sections 236.1, 236.2, 236.4, 290, 290.12, 290.14, and 290.15; added section 290.024 to
the Penal Code, and amended section 13159.14 of that Code.
2
Proposition 35 provided, in section 15, that the CASE Act “may be amended by
a statute in furtherance of its objectives passed in each house of the Legislature by rollcall
vote entered in the journal, a majority of the membership of each house concurring.”
(Voter Information Pamp., Gen. Elec. (Nov. 6, 2012) p. 105.)
1
being a victim of human trafficking is inadmissible to prove the victim’s criminal liability
for the commercial sexual act.”
Appellant, a 17-year-old victim of human trafficking, was charged with
prostitution under Penal Code section 647, subdivision (b), which provides that every
person who “solicits or who agrees to engage in or who engages in any act of prostitution
[is guilty of disorderly conduct]. 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 agreement to
engage in an act of prostitution shall constitute a violation of 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.”3
At the commencement of the jurisdictional hearing, appellant moved under section
1161 to exclude all evidence sought to be introduced by the district attorney to show that
she solicited acts of prostitution in violation of Penal Code section 647, subdivision (b).
The district attorney opposed the motion on the ground that evidence is inadmissible
under section 1161 only when offered to prove that a victim of human trafficking is
criminally liable for a “commercial sexual act,” and the offense described by subdivision
(b) of Penal Code section 647 is not such an act. According to the district attorney, the
phrase “commercial sexual act” in section 1161 is defined by section 236.1, subdivision
(h)(2) of the Penal Code, which states that a “commercial sex act” means “sexual conduct
on account of which anything of value is given or received by any person.” As the
district attorney emphasized, Penal Code section 647, subdivision (b) does not require,
and appellant was not given and did not receive, anything of value as a result of her
commission of that offense.
3
The nature of acts that may be deemed in furtherance of an agreement to engage
in an act of prostitution, which may be verbal, are described in Kim v. Superior Court
(2006) 136 Cal. App. 4th 937, 941-945 (Kim).
2
Accepting that argument, and also because it believed section 1161 inapplicable in
juvenile proceedings, the trial court denied appellant’s motion to exclude.
Finding that section 1161 does apply in juvenile proceedings, and that the trial
court’s acceptance of the prosecutor’s interpretation of that statute would virtually wipe
out a significant protection afforded victims of human trafficking by the CASE Act, we
shall reverse the judgment.
FACTS AND PROCEEDINGS BELOW
On May 28, 2015,4 the Los Angeles County District Attorney filed a wardship
petition (Welf. & Inst. Code, § 602) in case No. PJ51576A (Petition A), alleging that on
May 12, appellant, age 17, committed misdemeanor disorderly conduct by soliciting or
agreeing to engage in prostitution in violation of Penal Code section 647, subdivision (b),
and was therefore subject to the jurisdiction of the juvenile court pursuant to section 602
of the Welfare and Institutions Code. That same day, the district attorney filed a second
petition in case No. PJ51576B (Petition B), alleging that appellant committed the same
offense on May 27.5
On June 10, appellant moved under section 1161 to exclude all evidence the
district attorney planned to introduce to prove she engaged in commercial sexual acts,
because she was a “victim of human trafficking,” who had been coerced into performing
those acts by a pimp who was a human trafficker within the meaning of Penal Code
section 236.1, subdivision (c), which defines and criminalizes sex trafficking.6 The
4
All dates are in the year 2015.
5
As we later explain, Penal Code section 647, subdivision (b), was amended by
the Legislature during its current session, so that on January 1, 2017, when the
amendment becomes effective, the present provisions of subdivision (b) no longer apply
“to a child under 18 years of age who is alleged to have engaged in conduct . . . that
would, if committed by an adult, violate the subdivision.”
6
Penal Code section 236.1, subdivision (c) provides that “[a]ny person who
causes, induces, or persuades, or attempts to cause, induce, or persuade a person who is a
minor at the time of commission of the offense to engage in a commercial sex act, with
the intent to effect or maintain a violation of [specified statutes] is guilty of human
trafficking.”
3
motion also claimed that, since the evidence sought to be excluded consisted solely of the
testimony of two undercover police officers regarding the alleged acts of commercial sex,
the petitions should be dismissed after the exclusion of the officers’ testimony.
Before the presentation of evidence, the district attorney argued that the exclusion
of evidence authorized by section 1161 did not apply to appellant because it only applies
to evidence offered to prove the commission of a “commercial sexual act,” and neither
petition alleged she had engaged in any such act. The acts with which appellant was
charged, the district attorney emphasized, were not committed in return for “anything of
value given or received by any person,” as required by the definition of “commercial sex
act” set forth in Penal Code section 236.1, subdivision (h)(2), which, like Evidence Code
section 1161, is also a part of the CASE Act. As an offer of proof, the district attorney
represented that neither of the officers who would testify “are going to testify that any
sexual act was ever committed.”
The trial court elected to defer ruling on that issue, and proceed with an
evidentiary hearing, because it felt it appropriate to “make a record” with respect to two
threshold legal questions: (1) whether section 1161 applies only in criminal cases and not
in juvenile proceedings,7 and (2) whether, even if it does apply in juvenile proceedings, it
is inapplicable in this case because, as the district attorney claimed, no evidence shows
that appellant engaged in a “commercial sex act” as defined in Penal Code section 236.1,
subdivision (h)(2), as meaning “sexual conduct on account of which anything of value is
7
This issue was raised not by the district attorney, who disassociated himself from
it, but sua sponte by the court. The Attorney General stated in her brief that “we are in
agreement with appellant that section 1161 applies to minors who have engaged in a
commercial sexual act as a result of being a victim of human trafficking and who provide
testimony against individuals charged with the crime of human trafficking.” (Italics
added.) The record does not show appellant provided or was willing to provide
testimony against her pimp, and indicates she did not. In any case, the Attorney General
provided no authority for the proposition that the exclusion authorized by section 1161,
subdivision (a), is available only to victims of human trafficking who testify against an
alleged human trafficker, which was not asserted below by the district attorney, and we
are not aware of any authority for that proposition.
4
given or received by any person.” The trial court explained that no matter which way it
ruled on these issues it was confident there would be an appeal and, “given the lack of
clear direction at the moment,” it was important “that we develop as full a record as
possible. So . . . my inclination is to let the defense proceed with whatever showing it
wants to make, and I’ll simply rule at some point after we put this on.”
The court heard the testimony of the two undercover police officers and also that
of Nadeah Vali, an expert on human trafficking appointed by the court.
Undercover Los Angeles Police Officer Peter Ruiz, who testified with respect to
the facts alleged in Petition A, stated that on May 12, while a member of a task force
monitoring prostitution near the intersection of Sepulveda Boulevard and Nordhoff Street
“known for prostitution,” he approached appellant, who appeared to be in her early 20’s,
she told him to meet her around the corner, which he did, and she then entered his
unmarked car. After a discussion in which appellant and Ruiz discussed various types of
sexual acts and the price Ruiz would have to pay for each act or combination of acts,
appellant agreed to engage in “sex and a blowjob” for $60. Appellant told Officer Ruiz
she had a room in a hotel at Sepulveda and Tupper Street and told him to drive there.
When they arrived at the hotel’s parking lot, appellant was arrested by other members of
the task force. The police contacted appellant’s mother, who lived in Antioch in Contra
Costa County, and appellant was released to her the day after she was arrested.
Undercover Los Angeles Police Officer Marcos Gutierrez, a member of an
undercover task force monitoring prostitution near the intersection of Sepulveda and
Wyandotte Streets in Los Angeles, testified regarding the allegations of Petition B. He
stated that on May 27, while he was posing as a “John,” appellant looked in his direction,
walked over to the open window on the passenger side of his unmarked car, and stated
that “she was only doing blow jobs” that night. He said “O.K.,” asked how much that
would cost, and was told $40. Gutierrez drove the two of them to a location he and other
officers had previously decided upon, and appellant was immediately arrested by other
members of the task force. After her arrest, appellant refused to say whether she had a
5
pimp or to otherwise cooperate. After she refused to telephone her mother, appellant was
detained in juvenile hall.
Nadeah Vali, a court appointed expert on human and sexual trafficking, was asked
to assess whether appellant was a “victim of human trafficking” within the meaning of
section 1161. After interviewing appellant and familiarizing herself with police reports
regarding appellant’s present and prior arrests, and the probation reports relating to her
detention and pre-plea hearings, Vali concluded that appellant had been exploited by two
pimps, one known only as Victor, who had previously coerced her into engaging in
prostitution in Oakland, and another known only as Michael, who later exploited her that
same way in Los Angeles at the time she was arrested by Officers Ruiz and Gutierrez. In
Vali’s opinion, appellant “exhibit[ed] the indicators of being a victim of human
trafficking,” in that she exhibited “severe trauma” at the hands of “a third party exploiter”
who controlled her choices and actions, abused her, transported her to and from certain
locations, “coerced her into engaging in sexual acts, and confiscated the money she
earned as a result of those acts. 8 Vali’s testimony established, and it is undisputed, that
appellant committed the acts with which she was charged “as a result of being a victim of
human trafficking.” (§ 1161, subd. (a).)
Although, without objection from the district attorney, the court found appellant to
have committed the charged acts “as a result of being a victim of human trafficking,” it
nevertheless denied her motion to exclude evidence after concluding that, as matters of
8
Vali testified that Victor, who exploited appellant when she was in Oakland,
“essentially kidnapped [appellant] while she was on the streets; then physically abused
her on a daily basis and forced her to engage in certain . . . in commercial sex. He posted
ads that advertised for services online on websites . . . . [¶] . . . [¶] And he had a quota of
$600 a night that he forced her to turn over. He also set prices. And he also abused her if
she did not meet that quota . . . .”
Vali testified much the same about Michael, who exploited appellant in Los
Angeles at the time of the acts described in the petitions in this case. “She’s on the
streets, needed a place to stay. He took her to a motel where she was confined. He
transported her as well to and from the track. He also coerced her to engage in
commercial sex and set prices and also took the money that she earned.”
6
law, section 1161 does not apply in juvenile proceedings and, even if it did, section 1161
does not apply to cases such as this, in which the victim of human trafficking did not
actually engage in “sexual conduct on account of which anything of value is given or
received by any person.” (Pen. Code, § 236, subd. (h)(2).)
On July 15, appellant timely filed a notice of appeal in the Los Angeles County
Superior Court from the order finding true the allegations of the delinquency petitions.
On June 24, after the Los Angeles County Department of Social Services declined
to accept appellant as a client because her family resided in Northern California, the court
ordered the matter transferred to Contra Costa County for disposition.9
On November 2, the California Supreme Court ordered the notice of appeal filed
by appellant in the Second Appellate District transferred to this court.
The appeal is from the orders of the Los Angeles County Juvenile Court on June
16 and 24, sustaining the allegations of Petitions A and B that appellant committed the
offenses of soliciting, engaging, or agreeing to engage, in prostitution, in violation of
Penal Code section 647, subdivision (b), a misdemeanor, and adjudging her a ward of the
court pursuant to Welfare and Institutions Code section 602. The appeal, which is
authorized by section 800 of the Welfare and Institutions Code, was timely filed on July
15, 2015.
DISCUSSION
9
After accepting the transfer on August 12, the Contra Costa County Juvenile
Court ordered the probation department and a social service agency to evaluate appellant
and determine whether she should be adjudicated a dependent child or a delinquent. A
committee of eight persons representing the probation department and various social
service agencies recommended appellant be adjudged a delinquent ward. Accepting the
recommendation, the court adjudged appellant a ward of the court under Welfare and
Institutions Code section 602, committed her to the care and custody of the probation
department, and ordered her placement at a group home for the regular six-month
program. The dispositional orders of the Contra Costa County Superior Court are not
before us. As earlier indicated, the appeal was filed before the matter was transferred by
the Supreme Court to this court on October 28.
7
I.
Section 1161 Applies in Juvenile Proceedings
The trial court noted that several judicial opinions “touch upon” the issue of
whether section 1161 applies in delinquency proceedings, citing In re M.D. (2014) 231
Cal. App. 4th 993, In re Aarica S. (2014) 223 Cal. App. 4th 1480, and In re M.V. (2014)
225 Cal. App. 4th 1495, but felt none actually addressed the purely legal issue. “They
simply discuss it and suggest that it’s an issue for another day.” Observing that “[t]his
may well be that other day,” the court stated that “since I’m ruling that [section] 1161
does not apply to delinquency proceedings, it’s important for me to let the Court of
Appeal know why I’m thinking that.” The court explained its thoughts as follows:
“As delinquency judges and advocates, our responsibility is not to punish a person
who commits a crime. It is, rather, to rehabilitate and protect those who are under the age
of 18 from the consequences of their conduct and perhaps get them to a position where
they become law-abiding citizens in a way that does not leave them with an enduring or
lasting criminal record.
“I think it’s great that [appellant’s] grandparents are willing to take care of her in
these uncertain and difficult times, but as a judge who has observed [appellant’s] history,
my biggest concern, and it’s a concern in all these sorts of cases, is that without court
supervision, without becoming either a 300 or 602 ward, there is no incentive for her to
follow through. She has not yet reached the maturity level that would satisfy any
reasonable judge in believing that she might not run.” Believing appellant lacks “real
adult supervision,” the court stated that “the bottom line is, without some kind of
jurisdiction over the minor, this minor is in serious danger of, well, falling by the
wayside, whether she runs away, whether she re-engages with one of the pimps that have
been testified about. There is no way for a juvenile judge to protect a minor like this
without a declaration of wardship, without gaining jurisdiction over the minor.”
Moving on to the text of section 1161, the trial judge placed great weight on the
fact that the “[e]vidence that a victim of human trafficking . . . has engaged in any
commercial sexual act” which is excluded by the statute is that which “prove[s] the
8
victim’s criminal liability.” (Italics added.) As the court stated, “I think it’s absolutely
vital for me and the Court of Appeal to consider that word ‘criminal.’ The court
emphasized that “if the Legislature had decided that [section 1161] should apply to
delinquency proceedings, they could have clearly stated that.” The court acknowledged
the many similarities between the juvenile justice system and the criminal justice system,
but it was also “mindful of the fact that there are significant differences, and one of the
most important differences is that we adhere to protect [a juvenile] from herself, so to
speak in times of trouble. [¶] And so in an effort to prevent [appellant] from becoming
essentially a revolving door where she gets off the bus at someplace between here and
home and reconnects with a pimp, it’s important for me to adopt the position that [section
1161] can’t absolve her from a declaration of wardship.”
The trial court found section 1161 inapplicable in juvenile proceedings because
the evidence inadmissible under the statute is only that offered to prove “criminal
liability” and, as declared in Welfare and Institutions Code section 203, “[a]n order
adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a
crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal
proceeding.”
The trial court’s determination is clearly unsustainable.
To begin with, Welfare and Institutions Code section 701 provides that at a
hearing to determine whether a minor is a person described by sections 300, 601, or 602,
“[t]he admission and exclusion of evidence shall be pursuant to the rules of evidence
established by the Evidence Code and by judicial decision.” Finding section 1161
inapplicable to juvenile proceedings because it refers to “criminal liability” also ignores
the reasoning of In re Winship (1970) 397 U.S. 358 as to why the “civil labels” employed
in delinquency proceedings, and the rehabilitative goals of the juvenile law, provide no
basis upon which to deprive minors of protections analogous to those conferred by the
CASE Act, which would deny them a meaningful opportunity to present a complete
defense.
9
Finally, one of the chief purposes of the CASE Act is to protect minors, as the
crime of “human trafficking” is specifically made applicable to “[a]ny person who
causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a commercial sex act with
the intent to effect or maintain a violation of [various specified sexual crimes].” (Pen.
Code, § 236.1, subd. (c).) Given the extraordinary number of minors trafficked for
sexual purposes (see In re M.D., supra, 231 Cal.App.4th at p. 999; Office of the Attorney
General, Cal. Dept. of Justice, The State of Human Trafficking in California (2012) at
pp. 22-26, 48-56 (State of Human Trafficking) and the policy of the CASE Act to treat
these minors as victims, not criminals (In re Aarica S., supra, 223 Cal.App.4th at
p. 1486), the inapplicability of section 1161 in juvenile proceedings would obstruct one
of the chief purposes of the CASE Act: acknowledgment that minors sexually exploited
by human traffickers are not criminals or delinquents, but victims.
In any case, the question whether section 1161 applies in juvenile proceedings
charging minors with commercial sexual acts will soon become academic. On September
26, 2016, the Governor approved and filed with the Secretary of State, Senate Bill No.
1322 (Mitchell), which amends Penal Code section 647, subdivision (b). As earlier
noted, after January 1, 2017, present section 647 will “not apply to a child under 18 years
of age who is alleged to have engaged in conduct to receive money or other consideration
that would, if committed by an adult, violate the offense now described in subdivision
(b). (Sen. Bill No. 1322 ( 2015-2016 Reg. Sess.) ch. 654, § 1.) Senate Bill No. 1322 also
amends Penal Code section 653.22, which makes it a crime to loiter in any public place
with the intent to commit prostitution, so that it too will no longer be applicable to
minors. The amendments to Penal Code sections 647, subdivision (b) and 653.22—
which are commonly referred to as “the prostitution statutes” (In re M.V., supra, 225
Cal.App.4th at p. 1524)—mean that juveniles whose conduct would be unlawful under
those statutes if engaged in by an adult will no longer be prosecuted. In other words,
after January 1, 2017, when the amendments become effective, section 1161 will relate
only to criminal proceedings in which an adult charged with one or more “commercial
10
sexual acts” maintains those acts were the “result of being a victim of human
trafficking.”10
II.
Admitting Evidence of Conduct Punishable Under Penal Code
Section 647, Subdivision (b), in Prosecutions of Victims of Human
Trafficking for Sexual Acts Coerced by a Trafficker Would Deny Such
Victims Protection Clearly Intended by the CASE Act and be Absurd
The Attorney General agrees appellant committed the charged offenses “as a result
of being a victim of human trafficking,” but claimed in her brief that this case is not
within the ambit of section 1161 because, as the trial court agreed, appellant was not
charged with a “commercial sexual act,” as defined by Penal Code section 236.1; that is,
appellant was charged with an offense that does not require sexual conduct in return for
money or anything else of value. (People v. Mecano (2013) 214 Cal. App. 4th 1061,
1070.)
The issue before us is whether the “commercial sexual act” referred to in section
1161 is the same as the “commercial sex act” defined in Penal Code section 236.1,
subdivision (h)(2), or, as appellant maintains, “commercial sexual act” must be read more
expansively so as to include uncompensated sexual conduct punishable under Penal Code
section 647, subdivision (b). As previously indicated, this issue, which is one of first
impression,11 will soon be presented only in prosecutions in criminal proceedings against
10
Because section 1161 will remain applicable to adult prosecutions for
prostitution in violation of Penal Code sections 647, subdivision (b), and 653.22,
subdivision (a), the parties have indicated their belief it is appropriate for us to certify this
opinion for publication, in order to clarify that section 1161 protects adult victims of
human trafficking by excluding evidence offered to prove their criminal liability for
conduct proscribed by those prostitution statutes.
11
The only extant opinion that even adverts to the issue is In re Aarica S., supra,
223 Cal.App.4th at page 1486, a case in which the juvenile defendant was unable to show
that her commercial sex act was the result of being a victim of human trafficking. After
describing the purpose and intent of the voter who passed Proposition 35 and enacted the
CASE Act, and quoting the statutory definition of the crime of “human trafficking” as
causing or inducing, or persuading a minor to engage in a “commercial sex act” with the
11
an adult claiming he or she engaged in the charged commercial sexual acts “as a result of
being a victim of human trafficking.”
We review matters of statutory interpretation de novo. (Carver v. Chevron,
U.S.A., Inc. (2002) 97 Cal. App. 4th 132, 142.) Where the issue involves the proper
interpretation of a statute and its application to undisputed facts our review is
independent. (Smith v. Rae-Venter Law Group (2002) 29 Cal. 4th 345, 357.) “Initially,
‘[a]s in any case of statutory interpretation, our task is to determine afresh the intent of
the Legislature by construing in context the language of the statute.’ [Citation.] In
determining such intent, we begin with the language of the statute itself. [Citation.] That
is, we look first to the words the Legislature used, giving them their usual and ordinary
meaning. [Citation.] ‘If there is no ambiguity in the language of the statute, “then the
Legislature is presumed to have meant what it said, and the plain meaning of the
language governs.” ’ [Citation.] ‘But when the statutory language is ambiguous, “the
court may examine the context in which the language appears, adopting the construction
that best harmonizes the statute internally and with related statutes.” ’ ” (People v.
Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 192-193.)
As later described (see discussion, post, at p. 19, fn. 15), after the close of briefing,
we determined that the legislative history of the 2013 amendment of section 1161, which
was neither included in the record before us nor described in the briefs, was a matter of
substantial consequence to the determination of this appeal. Accordingly, as required by
Evidence Code section 459, subdivision (d), we provided that history to the parties,
indicated our intention to take judicial notice of this information, and afforded the parties
the opportunity to meet such information before judicial notice of the matter was taken.
Less than a week later, on the day before oral argument, the Attorney General advised the
intent to effect a violation of specified sex crimes (Pen. Code, § 236.1, subd. (c)), the
court observed that “ ‘[c]ommercial sex act’ is defined as ‘sexual conduct on account of
which anything of value is given or received by any person,’ ” citing subdivision (h)(2) of
Penal Code section 236.1. (In re Aarica S., at p. 1486.) The meaning of the phrase
“commercial sex act” was not at issue in Aarica S., and the court’s gratuitous observation
was merely in passing.
12
clerk of this court that, after belatedly considering the reasoning of People v. Casas
(1986) 181 Cal. App. 3d 889 (Casas), she desired to withdraw the argument in her brief
that the phrase “commercial sexual conduct” did not embody the unlawful conduct
proscribed by subdivision (b) of Penal Code section 647. The Attorney General
essentially acknowledges that the contrary determination of the trial court constituted
reversible error.
Casas involved Evidence Code sections 782 and 1103, which limit the
admissibility of evidence of “sexual conduct” of the complaining witness when offered to
attack the credibility of that witness, because such use of that evidence would deter rape
victims from filing complaints. The trial court in Casas relied on these statutes to
exclude evidence that the victim had offered a friend of the defendant sex for money
shortly before the defendant appeared in the victim’s room. (Casas, supra, 181
Cal.App.3d at pp. 894-895.) The Court of Appeal found no abuse of discretion because
the victim’s statement reflected her “willingness to engage in sexual intercourse,” which
constituted “sexual conduct” and therefore fell within the ambit of Evidence Code
sections 782 and 1103. (Casas, at p. 895.)
We agree that Casas calls for a more expansive interpretation of the phrase
“commercial sexual act” than the construction adopted by the trial court. The phrase
contemplates “the practice or occupation of engaging in sexual activity with someone for
payment,” which is the Oxford English Dictionary definition of “prostitution.”
Prostitution invariably commences, as it did in this case, with a discussion between the
parties of the sexual activity or activities offered by one party and at what cost to the
other party, an agreement as to the act and reciprocal payment, and conduct indicating a
specific intention to perform the agreement. Because this preludial conduct criminalized
by Penal Code section 647, subdivision (b), has both a commercial and a sexual aspect it
may reasonably be thought to constitute a “commercial sexual act,” or at least an element
of such an act, despite the fact that nothing of value has yet been given or received by any
person as compensation for that sexual conduct. However, the reasoning of Casas is
hardly the only justification for concluding that the phrase “commercial sexual act” is
13
ambiguous and amenable to interpretation, and that the mere act of soliciting prostitution
may properly be considered a “commercial sexual act” despite the absence of a
completed and compensated sexual act.
Although Evidence Code section 1161 refers to Penal Code section 236.1, the
syntax of the single sentence that comprises subdivision (a) of section 1161 indicates that
the reference to Penal Code section 236.1 is solely to its definition of “human trafficking”
in subdivisions (a), (b), and (c) of that statute;12 not to its definition in subdivision (h)(2)
of “commercial sex act.” The distinction appears purposeful. The definition of
“commercial sex act” in subdivision (h)(2) of section 236.1 tracks the definition of that
term in the federal Trafficking Victims Protection Act (22 U.S.C. § 7101 et seq.; see
especially § 7102(3).) However, although the definition of human trafficking in Penal
Code section 236.1 “is equivalent to the federal definition of a severe form of trafficking
found in [the federal trafficking act]” (Pen. Code, § 236.1, subd. (g), referring to 22
U.S.C. § 7102(8)), the federal act provides no benefit to victims of human trafficking
comparable to that authorized by section 1161. There was therefore no reason for our
Legislature to adopt language from the federal act in section 1161, a novel provision of
state law having no counterpart in the federal act.
We recognize that section 1161 and Penal Code section 236.1, subdivision (h)(2),
are both provisions of the CASE Act, and the latter statute defines language very similar
to that used in the former. As has been said, “identical language appearing in separate
statutory provisions should receive the same interpretation when the statutes cover the
same or analogous subject matter.” (People v. Cornett (2012) 53 Cal. 4th 1261, 1269,
fn. 6; People v. Lamas (2007) 42 Cal. 4th 516, 525.) But the phrase “commercial sexual
12
Subdivision (a) defines labor trafficking, subdivision (b) defines deprivations of
the liberty of another with the intent to effect a violation of specified statutes (relating to
pimping, pandering, the possession, sale, advertising, and distribution of obscene
materials, the exploitation of minors in certain sexual contexts, and extortion) as a form
of human trafficking, and subdivision (c) defines inducing or attempting to induce a
minor to engage in a commercial sex act with the intent to effect a violation of the same
statutes specified in subdivision (b).
14
act” in section 1161 is not “identical” to the phrase “commercial sex act” in Penal Code
section 236.1, subdivision (h)(2) and, more importantly, the two statutes do not
specifically relate to the same or analogous subject matter. Penal Code section 236.1
defines the nature and punishment of various forms of human trafficking, while section
1161 pertains to the exclusion of evidence in certain prosecutions of a victim of human
trafficking.
For the foregoing reasons, we conclude that, as used in section 1161, the phrase
“commercial sexual act” is, at the very least, ambiguous. Where statutory language is
ambiguous and susceptible to more than one reasonable interpretation “ ‘we look to a
variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be
remedied, the legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a part. [Citations.]’ [¶]
Furthermore, we must select a construction that comports most closely with the apparent
intent of the Legislature, with a view to promoting rather than defeating the general
purpose of the statute, and avoid an interpretation that would lead to absurd
consequences. [Citation.]” (Kim, supra, 136 Cal.App.4th at p. 941.)
The most helpful extrinsic aids are the legislative history of the 2013 amendment
of section 1161, and the absurd consequences that would follow from the interpretation
adopted by the trial court. The legislative history clearly shows the measure was
intended to apply to acts of prostitution that resulted from “being a victim of human
trafficking” even if the sexual conduct was not “on account of which anything of value is
given or received by any person.” (Pen. Code, § 236.1, subd. (h)(2).) The interpretation
of section 1161 embraced by the trial court therefore cannot be reconciled with the
apparent intent of the Legislature.
The original version of section 1161 enacted by passage of Proposition 35
provided that “[e]vidence that a victim of human trafficking . . . has engaged in any
commercial sexual act as a result of being a victim of human trafficking is inadmissible
to prove the victim’s criminal liability for any conduct related to that activity.” (Italics
added.) In 2013, the Legislature amended the statute by replacing the italicized words
15
with “the commercial sexual act,” so that subdivision (a) of section 1161 will read:
“Evidence that a victim of human trafficking, as defined in Section 236.1 of the Penal
Code, has engaged in any commercial sexual act as a result of being a victim of human
trafficking is inadmissible to prove the victim’s criminal liability for the commercial
sexual act.” (Italics added.)
Assemblyman Richard Bloom, the author of the amending measure, Assembly Bill
No. 694 (AB 694), explained its purpose to the Assembly and Senate Committees on
Public Safety and his views were reiterated in committee analyses of the measure made
available to all members of the Legislature as follows: “Language from Proposition 35
excludes evidence that a victim of human trafficking took part in a commercial sexual
act, such as prostitution, in prosecutions related to that activity. However, the language
as it reads now could reach beyond its intended use and potentially jeopardize other
serious prosecutions, such as robbery or murder of the human trafficker, where that
evidence may be key in establishing motive. By narrowing this section to apply only to
prosecutions for the commercial sexual act, AB 694 makes a simple change that insures
that Proposition 35 still protects victims of human trafficking but allows for this type of
evidence to be used in other prosecutions.” (Assem. Com. on Public Safety, Analysis of
Assem. Bill No. 694 (2013-2014 Reg. Sess.) p. 3 (Analysis).) Assemblyman Bloom thus
made clear that (1) prostitution is “a commercial sexual act,” (2) the voters who enacted
Proposition 35 intended that section 1161 apply in prosecutions of victims of human
trafficking for “prostitution,” and (3) AB 694 did not alter that application.13
So did Los Angeles County District Attorney Jackie Lacey, the proponent of the
amendment and, so far as the record shows, the only non-legislative source of
information regarding AB 694 received by the legislative committees that analyzed the
measure and placed it on consent calendars made available to all state legislators. In
identical letters to the Chairpersons and members of the Assembly and Senate Public
13
Assembly Bill No. 694 was introduced, enrolled and chaptered without any
amendments in merely six months.
16
Safety Committees dated, respectively, March 16 and June 3, 2013, and included in the
legislative bill analyses, Lacey stated that the original language of subdivision (a) of
section 1161 “ ‘creates potential problems for the prosecution if a victim of human
trafficking is being prosecuted for a crime other than a commercial sexual act related to
human trafficking. For instance, if a defendant was a victim of human trafficking and
murdered his or her pimp, the statute as currently enacted could be interpreted to make
inadmissible evidence that the defendant was a prostitute and the that murder victim was
the defendant’s pimp, thereby excluding important evidence connecting the defendant
and murder victim and potential evidence of motive for the murder.’ ” (Analysis at p 6.)
Lacey acknowledged that “ ‘[c]learly, in a prosecution of a victim of human
trafficking for an act of prostitution that is a product of the trafficking, [the initial version
of] Evidence Code section 1161[, subdivision] (a), makes any evidence of a commercial
sexual act related to that trafficking inadmissible.’ ” (Analysis at p. 6.) She then
explained that the amendment proposed by AB 694 “would clarify” that, as expressed in
the Official Voter Information Guide regarding Proposition 35, “ ‘the limitation on the
admissibility of evidence that a victim of human trafficking engaged in any commercial
sexual act, is intended to limit such evidence when being introduced to prosecute that
person for a commercial sexual act crime, such as prostitution.’ ” (Analysis at p. 7,
italics added.)
As reflected in the bill analyses, the District Attorney also told the chairpersons of
the policy committees that “ ‘[p]rior to proposing AB 694, our office met with Chris
Kelly, the proponent of the CASE Act, who informed us that the intent of Evidence Code
section 1161[, subdivision] (a) was to limit the prosecutions of the sexual act (i.e.,
prostitution), and that he supports our legislation that clarifies the intent of Proposition
35.’ ” (Analysis at p. 7, italics added.)
In short, as set forth in the bill analyses, the representation to the Legislature of the
Los Angeles County District Attorney reiterated that prostitution is a “commercial sexual
act.” The Legislature was therefore assured by the author of the bill and by its proponent
that the 2013 amendment, which was unopposed, would continue to protect victims of
17
human trafficking by excluding evidence of commercial sexual acts they were coerced by
human traffickers to perform when prosecuted by the state for those criminal acts, most
specifically prostitution, the criminal act for which victims of human sex trafficking are
most commonly prosecuted. (State of Human Trafficking, supra, at pp. 50-57; see Kim,
supra, 136 Cal.App.4th at p. 941 [courts may look to legislative history to discern
meaning of statutory language].)
It is not entirely clear why legislative attention was never called to the possibility
the phrase “commercial sexual act” in section 1161 might be seen as having the same
meaning as that ascribed to the phrase “commercial sex act” by Penal Code section 236.1
which, as we have explained, would render section 1161 largely meaningless. But
whatever the reason, the legislative history reflects no legislative intention to render
section 1161 inapplicable to the prosecution of a person for an act of prostitution,
including the solicitation of prostitution, that resulted from “being a victim of human
trafficking.” On the contrary, as the Los Angeles County District Attorney stated in her
letter to legislators, AB 694 was designed to “clarify” that the exclusion of evidence
authorized by section 1161, subdivision (a), is limited to evidence introduced to prosecute
a victim of human trafficking “for a commercial sexual crime, such as prostitution,” and
the measure was therefore consonant with the purpose of Proposition 35 and the CASE
Act.
The trial court’s interpretation of section 1161 would not only defeat the general
purpose of the CASE Act, but lead to absurd consequences.
Persons are rarely arrested for acts of prostitution “on account of which anything
of value is given or received.” (Pen. Code, § 236.1, subd. (h)(2).) Because law
enforcement officers may not themselves engage in sex with suspected prostitutes, let
alone compensate them with “anything of value” (ibid.), prostitution is in this state
ordinarily punished “as a type of disorderly conduct” under Penal Code section 647,
subdivision (b). (Witkin & Epstein, Cal. Criminal Law (4th Ed.) Sex Offenses and
Crimes Against Decency, § 76, p. 480.) As explained in Kim, supra, 136 Cal. App. 4th
937, the Legislature enacted Penal Code section 647, subdivision (b), in order “ ‘to give
18
police another enforcement tool’ on ‘prostitution laws that [were] difficult to enforce.’ ”
(Kim, at p. 942.)
As indicated, at the present time, almost all persons arrested for prostitution in this
state are charged with violating either Penal Code sections 647, subdivision (b), as was
appellant, or 653.22, subdivision (a),14 which makes it unlawful for any person to loiter in
any public place with the intent to commit prostitution.15 However, neither of these so
14
Subdivision (a) of Penal Code section 653.22 states that “It is unlawful for any
person to loiter in any public place with the intent to commit prostitution. This intent is
evidenced by acting in a manner and under circumstances which openly demonstrate the
purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit
prostitution.” Between 2007 and 2012 (through Sept. 30, 2012) 8,881 persons were
convicted of this offense in California courts. (State of Human Trafficking, supra, at
p. 57, Table 2.)
15
The Special Enforcement Section of the Los Angeles Police Department, states
that it “uses only 647 (B) for prostitution,” and that between January 1, 2012, and August
6, 2016, it arrested 10,691 persons for prostitution under Penal Code section 647,
subdivision (b). During that same period the department arrested 8,021 persons for
loitering for purposes of prostitution in violation of Penal Code section 653.22. (Los
Angeles Police Department, Special Enforcement Section, Detective Support and Vice
Division, Reporting Generated on Aug. 6, 2016.)
The Los Angeles County Sheriff’s Department reports that between January 1,
2011, and July 31, 2016, it made 5,541 “prostitution arrests” under Penal Code sections
647, subdivision (b) and 653.22. (L.A. County Sheriff’s Dept. Prostitution Arrests by
Penal Codes Jan. 1 – Dec. 31, 2011; Jan. 1 July 31, 2016.)
Statistics reported by the Los Angeles City Attorney show that between January 1,
2012, and December 31, 2016, officials prosecuted 10,065 cases in which count 1 was
violation of Penal Code section 647, subdivision (b), of which 84.9 percent resulted in
guilty pleas, 14.6 percent were dismissed, 0.25 percent resulted in a guilty verdict and 0
percent resulted in a verdict of not guilty. (Los Angeles City Attorney, Case Disposition
Status Reports for ALL BRANCHES, Reporting Generated Aug. 15, 2016.)
Because the statistics and legislative history we have described and discussed were
not a part of the record in this appeal or referred to by the parties in their briefs, we
provided these materials to the parties, indicated we considered them matters which may
be judicially noticed, and indicated our intention to take such notice. As required by
Evidence Code section 459, subdivision (d), we also afforded each party a reasonable
opportunity to meet such information, and the subject was discussed with counsel at oral
argument. We hereby take judicial notice of the bill analyses of the Assembly and Senate
19
called “prostitution statutes” (see, e.g., In re M.V., supra, 225 Cal.App.4th at p. 1524),
requires that “anything of value be given or received.” (§ 236.1, subd. (h)(2).)16
Therefore, if the interpretation of section 1161, subdivision (a), urged by the Los Angeles
County District Attorney in this case and adopted by the trial court is correct, the CASE
Act would provide no protection at all for victims of human trafficking prosecuted for
acts of prostitution they were forced by traffickers to perform. Such a ridiculous result
cannot, of course, be judicially countenanced.
Proposition 35 allowed that the CASE Act may be amended by the Legislature,
but only by means of “a statute in furtherance of its objectives.” (Prop. 35, § 15.)
Section 1161, as amended, is “in furtherance” of the objectives of the CASE Act only if
the phrase “commercial sexual act” is construed so as to embrace the conduct punishable
by subdivision (b) of Penal Code section 647. Accordingly, the trial court erred in
denying appellant’s motion to exclude evidence offered by the prosecution to prove her
criminal liability for commission of that offense.
Committees on Public Safety, which include the text of the identical letters from Los
Angeles County District Attorney Jackie Lacey dated March 16 and June 3, 2013, to the
chairpersons and members of those committees (see People v. Cruz (1996) 13 Cal. 4th
764, 780 [legislative staff analyses are subject to judicial notice]), and the statistical
information reported by the offices of the Los Angeles County District Attorney, the Los
Angeles City Attorney and the Los Angeles County Sheriff’s Department and referred to
in this opinion, which information is “not reasonably subject to dispute and [is] capable
of immediate and accurate determination by resort to sources of reasonably indisputable
accuracy.” (Evid. Code, § 452, subd. (h).)
16
It is unclear whether persons are or may be prosecuted for prostitution under
subdivision (a) of Penal Code section 647, which provides that every person “[w]ho
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” is guilty of disorderly
conduct, a misdemeanor. In any event, this offense also does not require the giving or
receipt of anything of value, and is therefore also not within the definition of
“commercial sex act” set forth in Penal Code section 236.1, subdivision (h)(2).
20
DISPOSITION
The judgment is reversed.
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
In re N.C. (A146637)
21
Trial Court: Los Angeles County Superior Court
Trial Judge Hon. Robert J. Schuit
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Theresa J. Canepa
Attorney for Appellant: Lynette G. Moore
Under Appointment by the Second
District Court of Appeal
Attorneys for Respondent: Kamala D. Harris
Attorney General of California
Gerald A. Engler
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Donna M. Provenzano
Supervising Deputy Attorney General
Christina Vom Saal
Deputy Attorney General
22