BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 721
Author: Bradford (D)
Amended: 6/27/13 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-2, 6/11/13
AYES: Hancock, Block, De León, Liu, Steinberg
NOES: Anderson, Knight
ASSEMBLY FLOOR : 42-32, 5/20/13 - See last page for vote
SUBJECT : Controlled substances: transporting with intent to
sell
SOURCE : California Attorneys for Criminal Justice
DIGEST : This bill defines "transports" for purposes of
transporting specified controlled substances to mean to
transport for sale.
Senate Floor Amendments of 6/27/13 clarify that the bill does
not limit prosecution of defendants for drug commerce on an
aiding and abetting or conspiracy theory.
ANALYSIS :
Existing law:
1.Provides that every person who transports, imports into the
state, sells, furnishes, administers, or gives away, or who
CONTINUED
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offers or attempts to do such acts, as to cocaine, cocaine
base, or heroin, or any controlled substance which is a
narcotic drug, without a written prescription from a
specified, licensed health care professional is guilty of a
felony, punishable by imprisonment for three, four, or five
years and a fine of up to $10,000. (Health & Safety Code Sec.
11352(a).)
2.Provides that every person who transports, imports into the
state, sells, furnishes, administers, or gives away, or who
offers or attempts do such acts, as to methamphetamine or a
specified non-narcotic controlled substance, without a written
prescription from a specified, licensed health care
professional is guilty of a felony, punishable by imprisonment
for two, three, or four years and a fine of up to $10,000.
(Health & Safety Code Sec. 11379(a).)
3.Provides that every person who transports, imports into the
state, sells, furnishes, administers, or gives away, or who
offers or attempts to do such acts, as to phencyclidine is
guilty of a felony, punishable by imprisonment, for three,
four, or five years and a fine of up to $10,000. (Health &
Safety Code Sec. 11379.5(a).)
4.States that any person who transports for sale a specified
controlled substance from one county to another noncontiguous
county is guilty of a felony, punishable by imprisonment for
three, six, or nine years and a fine of up to $10,000.
(Health & Safety Code Sec. 11352(b) and 11379(b).)
This bill:
1.Defines "transports" for purposes of transporting specified
Schedule I and II controlled substances, or any Schedule III,
IV, or V controlled substance which is a narcotic drug, unless
upon written prescription, as specified, to mean to transport
for sale.
2.States that nothing in this bill is intended to preclude or
limit prosecution under an aiding and abetting theory or a
conspiracy theory.
Background
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A person may be convicted of transportation of a controlled
substance (drug) if the substance is minimally moved, regardless
of the amount of the amount of the drug or intent of the
possessor. "Transportation of a drug is established by simply
carrying or conveying a usable quantity of a drug with knowledge
of its presence and illegal character. Neither this nor any
other court has ever required that the length of travel exceed
minimal movement." (People v. Emmal (1998) 68 Cal. App. 4th
1313, 1316.)
The statutory term "transportation" does not imply intent to
transfer possession and, thus, the statute does not exclude
transportation of contraband possessed only for personal use.
Further, although this initially appears illogical,
transportation of a drug does not necessarily include possession
of it. Dominion and control over a drug establishes legal
possession, regardless of whether or not one physically holds or
carries it. One need not have control over a drug in order to
knowingly transport it. (People v. Rogers (1971) 5 Cal.3d 129,
134-137; People v. Eastman (1993) 13 Cal App 4th 668, 674-678.)
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 7/1/13)
California Attorneys for Criminal Justice (source)
American Civil Liberties Union
California Public Defenders Association
Californians for Safety and Justice
Drug Policy Alliance
Friends Committee on Legislation of California
Los Angeles Regional Reentry Partnership
OPPOSITION : (Verified 7/1/13)
California District Attorneys Association
ARGUMENTS IN SUPPORT : The California Attorneys for Criminal
Justice argue:
An individual who "transports" a drug, or who "offers to
transport" a drug, is punished under the same statute that
applies to drug sellers. For example, one who is alleged
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to have transported cocaine is punished in Health and
Safety Code Sec. 11352, which also punishes one who sells
cocaine.
One would reasonably assume that because transporting a
drug is punished in the same statute that punishes sale of
the same drug, "transportation" means transporting the drug
for purposes of sale. Unfortunately, a divided California
Supreme Court held otherwise. (People v. Rogers (1971) 5
Cal.3d 129.) In Rogers, a narrow majority held that
because the word "transport" had not been modified to
clearly provide that the person transporting the drug was
doing so with the intent to sell, "transport" meant any
movement of the drug. Subsequent judicial decisions have
found that "transport" includes walking or bicycling while
in possession of a drug. (See, People v. Ormiston (2003)
105 Cal.App.4th 676 walking; People v. LaCross (2001) 91
Cal.App.4th 182 riding a bike.)
Further, the controlling decisions make clear that
"transporting" does not require any extended or long
movement. Hence, walking down the block or from an
individual's front door to a neighbor's house will suffice
to punish an individual for "transporting" the drug - with
the same penalties imposed on one who sells drug. In his
dissent from that California Supreme Court decision,
Justice Mosk deemed that interpretation of this
Legislature's statutes "unjust" and "absurd." (People v.
Rogers, supra, 5 Cal.3d 129, 144.)
AB 721 will correct the unwarranted interpretation that
punishes an individual much more harshly if he/she is
arrested walking down the street in possession of a small
amount of illegal drugs than an individual who is arrested
with the exact same quantity of drugs, but who is just
sitting on a bench. AB 721 will provide that an individual
may be punished for "transporting" an illegal drug only if
he/she is transporting that drug for purposes of sale. AB
721 simply corrects the "unjust" and "absurd" result
foreseen long ago by Justice Mosk, and provides that
similarly situated individuals should be treated similarly
by the law.
ARGUMENTS IN OPPOSITION : The California District Attorneys
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Association argues:
The California District Attorneys Association must
regretfully oppose AB 721. This bill would limit
application of the offense of transporting specified
controlled substances to situations in which the defendant
also had the intent to sell a controlled substance.
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 for sale are
on the books.
ASSEMBLY FLOOR : 42-32, 5/20/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon,
Campos, Chau, Chesbro, Daly, Dickinson, Eggman, Fong, Frazier,
Garcia, Gomez, Gordon, Hall, Roger Hernández, Levine,
Lowenthal, Medina, Mitchell, Mullin, Nazarian, Pan, Quirk,
Rendon, Skinner, Stone, Ting, Weber, Wieckowski, Williams,
Yamada, John A. Pérez
NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Cooley, Dahle,
Fox, Beth Gaines, Gatto, Gorell, Gray, Grove, Hagman, Harkey,
Jones, Linder, Maienschein, Mansoor, Melendez, Morrell,
Muratsuchi, Nestande, Olsen, Patterson, Perea, V. Manuel
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Pérez, Quirk-Silva, Salas, Wagner, Waldron, Wilk
NO VOTE RECORDED: Donnelly, Holden, Jones-Sawyer, Logue,
Vacancy, Vacancy
JG:ej 7/1/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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