BILL ANALYSIS �
AB 721
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Date of Hearing: April 16, 2013
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 721 (Bradford) - As Introduced: February 21, 2013
SUMMARY : Amends existing law to make the transportation of
specified controlled substances a felony only if the individual
transporting the controlled substance also has the intent to
sell.
EXISTING LAW :
1)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport
cocaine, cocaine base, or heroin, or any controlled substance
which is a narcotic drug, without a written prescription from
a licensed physician, dentist, podiatrist, or veterinarian
shall be punished by imprisonment for three, four, or five
years. [Health and Safety Code (HSC) Section 11352(a).]
2)Provides that every that transports, imports into the state,
sells, furnishes, administers, or gives away, or offers to
transport, import into the state, sell, furnish, or give away,
or attempts to import into this state or transport
methamphetamine, or any controlled substance, which is not a
narcotic, listed in the controlled substance schedule without
a written prescription from a licensed physician, dentist,
podiatrist, or veterinarian shall be punished by imprisonment
for two, three, or four years. [HSC Section 11379(a).]
3)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport PCP
without a written prescription from a licensed physician,
dentist, podiatrist, or veterinarian shall be punished by
imprisonment for three, four, or five years. [HSC Section
11379.5(a).]
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4)States that any person that transports for sale any controlled
substance, as specified, within this state from one county to
another noncontiguous county shall be punished by imprisonment
for three, six, or nine years. [HSC Sections 11352(b) and
11379(b).]
5)Provides that the possession for the purpose of sale of
cocaine or heroin is punishable by two, three, or four years.
(HSC Section 11351.)
6)States that the possession for the purpose of sale of cocaine
base is punishable by three, four, or five years. (HSC
Section 11351.5.)
7)Provides that the possession for sale of methamphetamine is
punishable by imprisonment for 16 months, two or three years.
(HSC Section 11378.)
8)States that the possession for the purpose of sale of PCP is
punishable by imprisonment for three, four, or five years.
(HSC Section 11378.5.)
9)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (HSC Sections 11054 to 11058.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 721 would
clarify the Legislature's intent to only apply felony drug
transportation charges to individuals involved in drug
trafficking or sales. Currently, an ambiguity in state law
allows prosecutors to charge drug users - who are not in any
way involved in drug trafficking - with TWO crimes for simply
being in possession of drugs. While current law makes it a
felony for any person to import, distribute or transport
drugs, the term 'transportation' used in the Health and Safety
Code has been widely interpreted to apply to ANY type of
movement - even walking down the street - and ANY amount of
drugs, even if the evidence shows the drugs are for personal
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use and there is no evidence that the person is involved in
drug trafficking. As a result, prosecutors are using this
wide interpretation to prosecute individuals who are in
possession of drugs for only personal use, and who are not in
any way involved in a drug trafficking enterprise.
"This bill makes it expressly clear that a person charged with
this felony must be in possession of drugs with the intent to
sell. Under AB 721, a person in possession of drugs ONLY for
personal use would remain eligible for drug possession
charges. However, personal use of drugs would no longer be
eligible for a SECOND felony charge for transportation."
2)Transportation of a Controlled Substance : A person may be
convicted of transportation of a controlled substance if a
controlled substance is minimally moved, regardless of the
amount of the amount of the controlled substance or intent of
the possessor. "Transportation of a controlled substance is
established by simply carrying or conveying a usable quantity
of a controlled substance with knowledge of its presence and
illegal character. Neither this or any other court has ever
required that the length of travel exceed minimal movement".
(People v. Emmal 68 Cal App, 4th 1313, 1316.)
The term "transportation" in statute prohibiting transportation
of a controlled substance does not imply an intent at the end
of the transportation to transfer possession and, thus,
statute does not exclude transportation of contraband
possessed only for personal use. [People v. Eastman (1993) 13
Cal App 4th 668.] This bill requires that a person
transporting a controlled substance have the intent to sell
the controlled substance in order to be convicted of felony
transportation of a controlled substance, eliminating the
possibility of a person transporting a small amount of a
controlled substance for personal use of being convicted of
felony transportation.
3)Argument in Support : The California Public Defenders
Association believes, "Individuals convicted of possession of
a controlled substance, for personal use, often find
themselves facing charges for 'transportation' of that
substance even when there is no evidence of intent to sell or
involvement in drug trafficking. Currently, the definition of
transportation of a controlled substance may include any
movement of that drug, including walking down the block or
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from one's front door to the neighbor's house. For example,
an individual in possession of a controlled substance walking
from their car to their front door is eligible to be charged
with possession and transportation of the drug, even when
there is no evidence of intent to distribute.
"The interpretation of "transport," and subsequent charge of
Cal. Health &Safety Code section 11352 turns the crime of
simple possession - often charged as a misdemeanor, into a
mandatory straight felony punishable by up to three years in
county jail. Moreover, a charge of transportation , even
where there is no evidence of intent to distribute prohibits a
person from participating in statutory rehabilitation programs
like those allowed in Cal. Penal Code section 1000, et seq.
"This bill simply clarifies that any conviction for
transportation, as specified, includes a showing intent to
distribute. This ensures that the most serious offenders are
sentenced to the elevated penalties."
4)Argument in Opposition : The California District Attorneys
Association states, "The controlled substances transportation
offense being restricted by this bill is a valuable tool in
narcotics enforcement. It allows for an enhanced charge where
the defendant is caught in a situation that might not qualify
as a sales offense, but where the defendant is a known dealer
or mule. Further, conviction of the offense triggers a
three-year enhancement if the defendant is later convicted of
transportation or sales.
"The transportation of controlled substances carries a greater
risk than simple possession. Defendants may be armed to
protect the drugs or they may be using the drug while
transporting it. Making this charge more difficult to prove,
which is accomplished by requiring the intent to sell, will
hinder enforcement of drug trafficking and jeopardize public
safety.
"There is no supportable need to limit the People's ability to
charge and prove this offense, especially when the lesser
offenses of possession and possession of sale are on the
books."
REGISTERED SUPPORT / OPPOSITION :
AB 721
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American Civil Liberties Union
California Public Defenders Association
Californians for Safety and Justice
Friends Committee on Legislation of California
Los Angeles Regional Reentry Partnership
Support
California Attorneys for Criminal Justice
Opposition
California District Attorneys Association
California Narcotics Officers' Association
California Police Chiefs Association
Analysis Prepared by : Gregory Pagan / PUB. S. / (916)
319-3744