BILL ANALYSIS �
AB 222
Page 1
Date of Hearing: April 30, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 222 (Cooley) - As Introduced: February 4, 2013
SUMMARY : Requires that the sentence for specified drug
convictions be served in state prison and not in county jail if
the weight/volume enhancement in Health and Safety Code (HSC)
Section 11370.4 is imposed.
EXISTING LAW :
1)Provides that a defendant convicted of possession for sale,
transportation, sale, or furnishing a controlled substance, or
of a conspiracy to commit any of those crimes, with respect to
a substance containing heroin, cocaine base, or cocaine shall
receive an additional term as follows:
a) If the substance exceeds one kilogram by weight, an
additional term of three years;
b) If the substance exceeds four kilograms by weight, an
additional term of five years;
c) If the substance exceeds 10 kilograms by weight, an
additional term of 10 years;
d) If the substance exceeds 20 kilograms by weight, an
additional term of 15 years;
e) If the substance exceeds 40 kilograms by weight, an
additional term of 20 years; and,
f) If the substance exceeds 80 kilograms by weight, an
additional term of 25 years. [HSC Section 11370.4(a).]
2)Provides that a defendant convicted of possession for sale,
transportation, sale, or furnishing a controlled substance, or
of a conspiracy to commit any of those crimes, with respect to
a substance containing methamphetamine, amphetamine,
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phencyclidine (PCP) and its analogs shall receive an
additional term as follows:
a) If the substance exceeds one kilogram by weight, or 30
liters by liquid volume, an additional term of three years;
b) If the substance exceeds four kilograms by weight, or
100 liters by liquid volume, an additional term of five
years;
c) If the substance exceeds 10 kilograms by weight, or 200
liters by liquid volume, an additional term of 10 years;
and,
d) If the substance exceeds 20 kilograms by weight, or 400
liters by liquid volume, an additional term of 15 years.
[HSC Section 11370.4(b).]
3)Allows the court to strike the additional punishment for the
weight enhancement if it determines that there are
circumstances in mitigation and states the reasons for
striking the additional punishment on the record. [HSC
Section 11370.4(e).]
4)Punishes the possession for sale of specified controlled
substances by imprisonment pursuant to Penal Code Section
1170(h) for two, three, or four years. (HSC Section 11351.)
5)Punishes the possession of cocaine base for sale by
imprisonment pursuant to Penal Code Section 1170(h) for three,
four, or five years. (HSC Section 11351.5.)
6)Punishes the transportation, sale, or furnishing of specified
controlled substances by imprisonment pursuant to Penal Code
Section 1170(h) for three, four, or five years. [HSC Section
11352(a).]
7)Punishes the possession for sale of other designated
controlled substances by imprisonment pursuant to Penal Code
Section 1170(h). (HSC Section 11378.)
8)Punishes the transportation, sale, or furnishing of other
designated controlled substances by imprisonment pursuant to
Penal Code Section 1170(h) for two, three, or four years.
[HSC Section 11379(a).]
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9)Punishes the possession for sale, transportation, sale, or
furnishing of other designated substances, including PCP, by
imprisonment pursuant to Penal Code section 1170(h) for three,
four, or five years. (HSC Sections 11378.5 and 11379.5.)
10)Prohibits a term of more than one year in the county jail
except for executed felony sentences under Penal Code Section
1170(h). [Penal Code Section 19.2.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The purpose of
realignment was to move appropriate offenses to the county
where convicts have closer ties to the community and could
serve their sentence out with a focus on rehabilitation. Some
crimes however inadvertently have been shifted to the county
level detention when the most appropriate place is state
prison.
"For serious drug offences where the defendant has been
convicted of carrying large amounts of drugs including
cocaine, heroin, or methamphetamines- sentences can easily run
into the decades. Those sentences are appropriately served at
the state level and not at the county jail facilities."
2)The Statute : The Legislature added the weight and volume
enhancement "to punish dealers of large amounts of drugs in
direct proportion to the quantity of drugs involved. This
intent is evidenced by both the express purpose of the section
and the graduated sentence enhancements provided therein."
[People v. Pieters (1991) 52 Cal.3d 894, 901.] The
Legislature wanted to more severely punish those persons who
are in the regular business of trafficking in, or production
of, narcotics and those persons who deal in large quantities
of narcotics, as opposed to individuals who have a less
serious, occasional, or relatively minor role in this
activity. [People v. Carvajal (1988) 202 Cal.App.3d 487,
501.]
The statute affords the court the power to strike the additional
term imposed by the enhancement. However, the court does not
have the power to substitute one of the term enhancements for
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another, e.g., the five-year additional term under HSC Section
11370.4(a)(2) for the fifteen-year additional term under HSC
Section 11370.4(a)(4). [People v. Ruiz (1992) 3 Cal.App.4th
1251, 1255.]
3)Effect on Criminal Justice Realignment : 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 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 be specifically excluded
from eligibility for local custody (i.e., the sentence for
which must be served in state prison).
This bill specifies that any defendant who is convicted of a
drug offense in which the weight/volume enhancement is proven
must serve that sentence in state prison rather than in the
county jail. Thus, this bill creates a new exclusion for
county-jail eligibility.
4)On-Going Concerns for Prison Overcrowding : In January 2010,
a three-judge panel issued a ruling ordering the State of
California to reduce its prison population to 137.5% of design
capacity because overcrowding was the primary reason that the
California Department of Corrections and Rehabilitation (CDCR)
was unable to provide inmates with constitutionally adequate
healthcare. [Coleman/Plata vs. Schwarzenegger (2010) No. Civ
S-90-0520 LKK JFM P/NO. C01-1351 THE.] The United State
Supreme Court upheld the decision, 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. [Brown v. Plata (2011) 131
S.Ct. 1910, 1939; 179 L.Ed.2d 969, 999.] Without changes to
how the prison population was managed, the court decisions
"could have led to arbitrary early release of tens of
thousands of prison inmates." (See Chief Probation Officers
of California Issue Brief, Realignment Perspective, July
2012.)
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Realignment has significantly reduced the prison population;
however, it is projected to be insufficient to comply with the
court-ordered population limit. In January 2013, the State
moved to vacate or to modify the population reduction order,
arguing that the reductions made to date are sufficient. On
January 29, 2013, the federal court extended the deadline to
December 2013. However, on April 11, 2013, the federal court
denied the State's motion to vacate or modify the population
reduction order. On that same day, the court also ordered the
State to submit a list of all identified prison population
reduction measures within 21 days.
On April 23, 2013, Martin Hoshino, an undersecretary at CDCR,
testified about the federal court order in this Committee.
Mr. Hoshino explained that CDCR must submit a plan to reduce
the prison population by May 2, 2013, and thereafter provide
monthly reports to the court. Mr. Hoshino noted that the plan
must be durable and on-going. Mr. Hoshino noted that the
court had threatened to hold officials in contempt of court
for failure to comply. Finally, Mr. Hoshino stated that the
department's gravest concern is any state action that
increases the state's prison population would be suggestive of
the fact that it does not intend to comply with the court's
orders. Thus, prison capacity remains a serious concern.
CDCR has informed the Committee that in calendar year 2010
there were 168 defendants admitted to state prison based on a
drug offense with an enhancement under HSC Section 11370.4
imposed. In calendar year 2011, there were 156 defendants
admitted based on a drug offense with this enhancement
attached.
5)Reports of Long Jail Felony Sentences : According to the
background provided by the author of the bill, "defendants
convicted of possessing for sale, selling, and transporting
controlled substances without prior or current serious and/or
violent felonies are being sentenced to county jail, with many
of these sentences exceeding 15 or 20 years in length."
The California State Sheriffs' Association recently conducted a
survey regarding numbers of long-term offenders in county
jail. A summary of the information collected from 52 counties
as of February 25, 2013 notes that there were 1,109 county
jail inmates sentenced to five to ten years and 44 county jail
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inmates sentenced to over 10 years. The most common crimes
for those sentenced to five to ten years were vehicle theft,
drug trafficking, receiving stolen property, identity theft,
and commercial burglary. Additionally, the largest number of
crimes for over 10 years was drug trafficking but these
sentences were not exclusively drug trafficking. (See
.)
As noted above, while the court has the discretion to strike the
additional punishment for the weight/volume enhancement, it
does not have the discretion to lessen the term to a lower one
than prescribed by the statute based on the amount of
contraband involved. [People v. Ruiz, supra, 3 Cal.App.4th
1251, 1255.]
However, the use of split sentencing permitted under realignment
could affect the incidence of very long jail felony sentences
such as these. For convicted felony offenders subject to
confinement in the county jail, the court is permitted to
determine the term of the sentence in accordance with
applicable sentencing law, but suspend execution of a
concluding portion of the term selected in the court's
discretion, during which time the defendant shall be
supervised by the county probation officer in accordance with
the terms, conditions, and procedures generally applicable to
persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision is mandatory, and cannot be terminated early
except by court order. [Penal Code Section 1170(h)(5)(B).]
The Chief Probation Officers of California has compiled data
regarding sentencing decisions for felons sentenced under
Penal Code Section 1170(h). Their data indicates that between
October 2011 and September 2012, 7,006 felons sentenced under
Penal Code Section 1170(h) were given split sentences, and
22,021 were given jail time only. Thus, only about 25 percent
of jail felony offenders received split sentences during the
first year of realignment. (See
.)
Therefore, a possible alternative to avoiding some of these
lengthy jail sentences without exacerbating the prison
overcrowding problem would be to use split sentences with more
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frequency.
6)Funding for Realignment Has Already Been Shifted to Local
Governments : As part of realignment the state shifted certain
revenues to local governments. As explained by the LAO:
"(T)he 2011-12 budget package included statutory changes to
realign several criminal justice and other programs from state
responsibility to local governments, primarily counties.
Along with the shift, or realignment, of programs, state law
realigned revenues to locals. Specifically, current law
shifts a share of the state sales tax, as well as Vehicle
License Fee revenue, to local governments. The passage of
Proposition 30 by voters in November 2012, among other
changes, guaranteed these revenues to local governments in the
future. The Governor's budget includes an estimate of
revenues projected to go to local governments over the next
few years. These estimates are generally in line with prior
estimates. (T)otal funding for the criminal justice programs
realigned is expected to increase from $1.4 billion in 2011-12
to $2.2 billion in 2013-14."
This bill provides for a drug conviction with a weight/volume
enhancement to be served in state prison where it is currently
eligible to be served in county jail. Based on the calendar
year 2011 figures of defendants incarcerated in prison for
this offense and the per capita cost of incarceration, CDCR
has estimated that in fiscal year 2015/15 it would cost $9.4
million to incarcerate these defendants. By fiscal year
2022/23, CDCR estimates these costs would be 35.5 million.
Would the counties have to return part of their
realignment-allotted revenues back to the State, or would the
State have to pay twice to incarcerate these individuals
because the funding is constitutionally protected? (See Cal.
Const., Art. XIII, sec. 36.)
7)Argument in Support : According to the California District
Attorneys Association , the sponsor of this bill, "Existing law
(Health and Safety Code Section 11370.4) provides a sentence
enhancement (3-25 years) for persons convicted of possessing
for sale, selling, or transporting certain dangerous drugs if
the quantity of drugs involved exceeds a certain amount. This
statute appropriately recognizes the serious nature of an
offense involving large quantities of controlled substances
and allows for the law to distinguish between offenses
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involving relatively small amounts of drugs and those more
commonly associated with drug trafficking.
"However, because criminal justice realignment subjected persons
convicted of possessing for sale, selling, and transporting
controlled substances without prior or current serious and/or
violent felonies to jail sentences instead of prison
sentences, offenders are being sentenced to extremely long
terms of incarceration in county jail. Many of these
sentences exceed 15 or 20 years in length.
"This causes two major problems. First, these drug offenses
pose a serious risk to the people involved and the general
public. The offenders who receive this sentence enhancement
are not users with an addiction or even small-time dealers who
might be selling to feed a habit. Drug traffickers should not
be housed in county jail.
"Second, as has been stated ad nauseum, county jails were not
conceived, constructed, or staffed to house inmates for
extremely long periods of time, and certainly not for decades.
"As the criminal justice system has evolved in the wake of
realignment, so must our statutes when a clear systemic
problem like the one described above is encountered. The
proposed solution requires prison sentences for drug
trafficking offenses where the excessive amount is
quantifiable and plead and proven in court. If the
enhancement is not proven true or the court strikes the
enhancement, the bill would not apply. These safeguards
ensure that the most serious drug traffickers will serve their
sentences in prison and keep less egregious offenders from the
bill's reach."
8)Argument in Opposition : The Drug Policy Alliance writes, "AB
222 represents an erosion of the progress our state has made
since the passage and ongoing implementation of Assembly Bill
(AB) 109, also known as "Realignment." Since the United
States Supreme Court directed California to reduce its prison
population, the Governor, state legislature, law enforcement,
and counties across the state have come together to address
the problem - passing and overseeing the implementation of AB
109. While far from perfect, this legislation has done much to
alleviate overcrowding in state prisons and provide
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opportunities for offenders to be housed more locally, with
better connectivity to services. Moreover, given the stern
directive of the federal court order earlier this month
requiring our State to further reduce its prison population,
now is clearly not the time to send more individuals to state
prisons.
"AB 222 reintroduces the very policies that caused California's
prisons to grow dangerously overcrowded in the first place.
Prior to Realignment, the increasingly large number of
non-violent drug law offenders sent to state prison, led to
the fiscally untenable, unconstitutional, and inhumane
conditions that we as a state are still working to fix. AB 222
represents a regressive move back towards lengthy prison
incarceration for many non-violent drug offenders, when
instead we should be reducing the layers of enhancements
currently tangling up our sentencing laws and entrapping
people of color in the criminal justice system for life.
"Prison sentencing for drug-related crimes removes individuals
further from their families, local communities, and
rehabilitative services substantially decreasing their
likelihood of success upon release and reentry. We are
particularly troubled by the impact this proposed legislation
will have on Black and Latino communities. The disparities in
our criminal justice system are well documented - although
committing drug offenses at comparable rates, Blacks are
arrested between 2.8 and 6 times as often and more than 10.1
times more likely than whites to be sent to prison for a drug
related offense. We fear this legislation will merely help
perpetuate these harms.
"It is unwise and premature to change AB 109 in the manner
proposed, narrowing the range of individuals that qualify for
county sentencing."
9)Related Legislation :
a) AB 2 (Morrell) requires a person who violates the
conditions of parole or of post-release community
supervision (PRCS) by failing to fulfill sex-offender
registration requirements to serve time for the violation
in prison rather than in the county jail. AB 2 failed
passage in this Committee and reconsideration was granted.
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b) AB 601 (Eggman) authorizes the court to return a parolee
to state prison for a period not to exceed one year when
parole is revoked. AB 601 was retained by this Committee
and the subject matter was referred to Assembly Rules for
interim study.
c) AB 605 (Linder) provides that a defendant who is
released on parole or PRCS, who has suffered a prior or
current felony requiring registration as a sex offender,
and who violates parole or PRCS shall serve any period of
incarceration ordered for that violation in the state
prison. AB 605 failed passage in this Committee and
reconsideration was granted.
d) AB 1084 (Melendez) increases the penalties for numerous
offenses related to the illegal possession of firearms, and
requires that many of related sentences be served in the
state prison rather than county jail. AB 1084 is being
heard by this Committee today.
e) SB 57 (Lieu) provides that a person who willfully
removes or disables, or willfully permits another to remove
or disable, an electronic, global positioning system, or
other monitoring device affixed to his or her person,
knowing that the device was affixed as a condition of
parole, is guilty of a felony, punishable by imprisonment
in the state prison for 16 months, two years, or three
years. SB 57 is pending hearing by the Senate Public
Safety Committee.
f) SB 225 (Emmerson) requires that a defendant convicted of
a felony and sentenced to an aggregate term of more than
three years serve that sentence in state prison rather than
county jail. SB 225 failed passage in the Senate Public
Safety Committee and reconsideration was granted.
g) SB 226 (Emmerson) requires that a defendant convicted of
a felony and found to have a "severe mental disorder" as
specified, serve their sentence in state prison rather than
county jail. SB 226 failed passage in the Senate Public
Safety Committee and reconsideration was granted.
h) SB 708 (Nielsen) requires that any person convicted of a
felony who has been previously convicted of at least three
felonies serve his or her sentence in state prison
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regardless of whether the defendant would otherwise be
subject to a felony jail term. SB 708 failed passage in
the Senate Public Safety Committee and reconsideration was
granted.
10)Prior Legislation :
a) AB 109 (Committee on Budget), Chapter 15, Statutes of
2011, created the PRSC Act, which provides, among other
things, that inmates released from prison who are not
required to be on parole are subject to up to three years
of local supervision.
b) SB 1363 (Mello), Chapter 680 of the 1991-92 Legislative
Session, decreased the weight amounts and added longer
terms of imprisonment as enhancements.
c) AB 2448 (Harris), Chapter 1326 of the 1989-90
Legislative Session, applied the weight enhancement to
persons convicted of conspiracy to violate the specified
drug offenses.
d) AB 2320, Chapter 1398 of the 1985-1986 Legislative
Session, enacted the weight enhancement for specified drug
offenses involving heroin and cocaine.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association (Sponsor)
California Narcotics Association
California State Sheriffs' Association
County of Sacramento
San Diego County District Attorney
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
California Public Defenders Association
Center on Juvenile and Criminal Justice
Drug Policy Alliance
Taxpayers for Improving Public Safety
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Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744