Amended in Assembly August 11, 2014

Amended in Assembly June 11, 2014

Amended in Senate March 17, 2014

Senate BillNo. 1010


Introduced by Senator Mitchell

(Principal coauthor: Senator Hancock)

(Principal coauthor: Assembly Member Ammiano)

(Coauthors: Senators Lara and Leno)

(Coauthors: Assembly Membersbegin insert Bocanegra, Bradford, Donnelly, Eggman, Gonzalez,end insert Hall,begin insert Holden,end insert Jones-Sawyer, Quirk,begin insert Ridley-Thomas,end insert Skinner, begin deleteandend delete Stonebegin insert, Ting, and Weberend insert)

February 13, 2014


An act to amend Sections 11351.5 and 11470 of the Health and Safety Code, and to amend Section 1203.073 of the Penal Code, relating to controlled substances.

LEGISLATIVE COUNSEL’S DIGEST

SB 1010, as amended, Mitchell. Cocaine base: penalties.

Existing law provides that every person who possesses for sale or purchases for purposes of sale cocaine base is subject to imprisonment inbegin delete the state prisonend deletebegin insert a county jailend insert for a period of 3, 4, or 5 years.

This bill instead would provide that every person who possesses for sale or purchases for purposes of sale cocaine base is subject to imprisonment inbegin delete the state prisonend deletebegin insert a county jailend insert for 2, 3, or 4 years.

Existing law generally provides that the interest of any registered owner of a boat, airplane, or any vehicle, except as specified, that has been used to facilitate the manufacture of, or possession for sale or sale of, 14.25 grams or more of cocaine base or 28.5 grams or more of cocaine is subject to forfeiture, as specified.

This bill would revise that provision to instead make property that has been used to facilitate the manufacture of, or possession for sale or sale of, 28.5 grams or more of cocaine base or cocaine subject to forfeiture.

Existing law, except in unusual cases, prohibits granting probation or suspending a sentence for persons convicted of specified crimes relating to controlled substances, including possessing for sale a substance containing 57 grams or more of a substance containing cocaine, 14.25 grams or more of cocaine base, or 57 grams or more of a substance containing at least 5 grams of cocaine base, and transporting or importing for sale, selling, or offering to sell cocaine base.

This bill would delete those provisions and would instead prohibit, except in unusual cases, granting probation or suspending a sentence for persons convicted of possessing for sale or selling a substance containing 28.5 grams or more of cocaine base or 57 grams or more of a substance containing at least 5 grams of cocaine or cocaine base.

By making additional persons eligible for probation, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

This act shall be known, and may be cited, as the
2California Fair Sentencing Act.

3

SEC. 2.  

(a) The Legislature finds and declares that cocaine
4hydrochloride (powder cocaine) and cocaine base (crack cocaine)
5are two forms of the same drug, the effects of which on the human
6body are so similar that to mete out unequal punishment for the
7same crime (e.g., possession for sale of a particular form of
8cocaine), is wholly and cruelly unjust.

9(b) It is the intent of the Legislature in enacting this act to
10provide that for the purposes of determining appropriate penalties
P3    1for crimes relating to cocaine hydrochloride and cocaine base,
2including, but not limited to, the crime of possession, possession
3for sale, or transportation for sale, cocaine hydrochloride and
4cocaine base shall be treated in an identical manner.

5

SEC. 3.  

Section 11351.5 of the Health and Safety Code is
6amended to read:

7

11351.5.  

Except as otherwise provided in this division, every
8person who possesses for sale or purchases for purposes of sale
9cocaine base, which is specified in paragraph (1) of subdivision
10(f) of Section 11054, shall be punished by imprisonment pursuant
11to subdivision (h) of Section 1170 of the Penal Code for a period
12of two, three, or four years.

13

SEC. 4.  

Section 11470 of the Health and Safety Code is
14amended to read:

15

11470.  

The following are subject to forfeiture:

16(a) All controlled substances which have been manufactured,
17distributed, dispensed, or acquired in violation of this division.

18(b) All raw materials, products, and equipment of any kind
19which are used, or intended for use, in manufacturing,
20compounding, processing, delivering, importing, or exporting any
21controlled substance in violation of this division.

22(c) All property except real property or a boat, airplane, or any
23vehicle which is used, or intended for use, as a container for
24property described in subdivision (a) or (b).

25(d) All books, records, and research products and materials,
26including formulas, microfilm, tapes, and data which are used, or
27intended for use, in violation of this division.

28(e) The interest of any registered owner of a boat, airplane, or
29any vehicle other than an implement of husbandry, as defined in
30Section 36000 of the Vehicle Code, which has been used as an
31instrument to facilitate the manufacture of, or possession for sale
32or sale of 14.25 grams or more of heroin, or a substance containing
3314.25 grams or more of heroin, or 14.25 grams or more of a
34substance containing heroin, or 28.5 grams or more of Schedule I
35controlled substances except marijuana, peyote, or psilocybin; 10
36pounds dry weight or more of marijuana, peyote, or psilocybin;
37or 28.5 grams or more of cocaine, as specified in paragraph (6) of
38subdivision (b) of Section 11055, cocaine base as specified in
39paragraph (1) of subdivision (f) of Section 11054, or
40methamphetamine; or a substance containing 28.5 grams or more
P4    1of cocaine, as specified in paragraph (6) of subdivision (b) of
2Section 11055, cocaine base as specified in paragraph (1) of
3subdivision (f) of Section 11054, or methamphetamine; or 57 grams
4or more of a substance containing cocaine, as specified in paragraph
5(6) of subdivision (b) of Section 11055, cocaine base as specified
6in paragraph (1) of subdivision (f) of Section 11054, or
7methamphetamine; or 28.5 grams or more of Schedule II controlled
8substances.begin delete Noend deletebegin insert Anend insert interest in a vehicle which may be lawfully
9driven on the highway with a class C, class M1, or class M2
10license, as prescribed in Section 12804.9 of the Vehicle Code,begin delete mayend delete
11begin insert shall notend insert be forfeited under this subdivision if there is a community
12property interest in the vehicle by a person other than the defendant
13and the vehicle is the sole class C, class M1, or class M2 vehicle
14available to the defendant’s immediate family.

15(f) All moneys, negotiable instruments, securities, or other things
16of value furnished or intended to be furnished by any person in
17exchange for a controlled substance, all proceeds traceable to such
18an exchange, and all moneys, negotiable instruments, or securities
19used or intended to be used to facilitate any violation of Section
2011351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5,
2111379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or
22Section 182 of the Penal Code, or a felony violation of Section
2311366.8 of this code, insofar as the offense involves manufacture,
24sale, possession for sale, offer for sale, or offer to manufacture, or
25 conspiracy to commit at least one of those offenses, if the
26exchange, violation, or other conduct which is the basis for the
27forfeiture occurred within five years of the seizure of the property,
28or the filing of a petition under this chapter, or the issuance of an
29order of forfeiture of the property, whichever comes first.

30(g) The real property of any property owner who is convicted
31of violating Section 11366, 11366.5, or 11366.6 with respect to
32that property. However, property which is used as a family
33residence or for other lawful purposes, or which is owned by two
34or more persons, one of whom had no knowledge of its unlawful
35use, shall not be subject to forfeiture.

36(h) (1) Subject to the requirements of Section 11488.5 and
37except as further limited by this subdivision to protect innocent
38 parties who claim a property interest acquired from a defendant,
39all right, title, and interest in any personal property described in
40this section shall vest in the state upon commission of the act giving
P5    1rise to forfeiture under this chapter, if the state or local
2governmental entity proves a violation of Section 11351, 11351.5,
311352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5,
411379.6, 11380, 11382, or 11383 of this code, or Section 182 of
5the Penal Code, or a felony violation of Section 11366.8 of this
6code, insofar as the offense involves the manufacture, sale,
7possession for sale, offer for sale, offer to manufacture, or
8conspiracy to commit at least one of those offenses, in accordance
9with the burden of proof set forth in paragraph (1) of subdivision
10(i) of Section 11488.4 or, in the case of cash or negotiable
11instruments in excess of twenty-five thousand dollars ($25,000),
12paragraph (4) of subdivision (i) of Section 11488.4.

13(2) The operation of the special vesting rule established by this
14subdivision shall be limited to circumstances where its application
15will not defeat the claim of any person, including a bona fide
16purchaser or encumbrancer who, pursuant to Section 11488.5,
1711488.6, or 11489, claims an interest in the property seized,
18 notwithstanding that the interest in the property being claimed was
19acquired from a defendant whose property interest would otherwise
20have been subject to divestment pursuant to this subdivision.

21

SEC. 5.  

Section 1203.073 of the Penal Code is amended to
22read:

23

1203.073.  

(a) A person convicted of a felony specified in
24subdivision (b) may be granted probation only in an unusual case
25where the interests of justice would best be served. When probation
26is granted in such a case, the court shall specify on the record and
27shall enter in the minutes the circumstances indicating that the
28interests of justice would best be served by such a disposition.

29(b) Except as provided in subdivision (a), probation shall not
30be granted to, nor shall the execution or imposition of sentence be
31suspended for, any of the following persons:

32(1) Any person who is convicted of violating Section 11351 or
3311351.5 of the Health and Safety Code by possessing for sale, or
34Section 11352 of the Health and Safety Code by selling, a
35substance containing 28.5 grams or more of cocaine as specified
36in paragraph (6) of subdivision (b) of Section 11055 of, or cocaine
37base as specified in paragraph (1) of subdivision (f) of Section
3811054 of, the Health and Safety Code, or 57 grams or more of a
39substance containing at least five grams of cocaine as specified in
40paragraph (6) of subdivision (b) of Section 11055 of, or cocaine
P6    1base as specified in paragraph (1) of subdivision (f) of Section
211054 of, the Health and Safety Code.

3(2) Any person who is convicted of violating Section 11378 of
4the Health and Safety Code by possessing for sale, or Section
511379 of the Health and Safety Code by selling a substance
6containing 28.5 grams or more of methamphetamine or 57 grams
7or more of a substance containing methamphetamine.

8(3) Any person who is convicted of violating subdivision (a) of
9Section 11379.6 of the Health and Safety Code, except those who
10manufacture phencyclidine, or who is convicted of an act which
11is punishable under subdivision (b) of Section 11379.6 of the
12Health and Safety Code, except those who offer to perform an act
13which aids in the manufacture of phencyclidine.

14(4) Except as otherwise provided in Section 1203.07, any person
15who is convicted of violating Section 11353 or 11380 of the Health
16and Safety Code by using, soliciting, inducing, encouraging, or
17intimidating a minor to manufacture, compound, or sell heroin,
18cocaine base as specified in paragraph (1) of subdivision (f) of
19Section 11054 of the Health and Safety Code, cocaine as specified
20in paragraph (6) of subdivision (b) of Section 11055 of the Health
21and Safety Code, or methamphetamine.

22(5) Any person convicted of violating Section 11379.6, 11382,
23or 11383 of the Health and Safety Code with respect to
24methamphetamine, if he or she has one or more prior convictions
25for a violation of Section 11378, 11379, 11379.6, 11380, 11382,
26or 11383 of the Health and Safety Code with respect to
27methamphetamine.

28(c) As used in this section, the term “manufacture” refers to the
29act of any person who manufactures, compounds, converts,
30produces, derives, processes, or prepares, either directly or
31indirectly by chemical extraction or independently by means of
32chemical synthesis.

33(d) The existence of any previous conviction or fact which would
34make a person ineligible for probation under this section shall be
35alleged in the information or indictment, and either admitted by
36the defendant in open court, or found to be true by the jury trying
37the issue of guilt or by the court where guilt is established by a
38plea of guilty or nolo contendere or by trial by the court sitting
39without a jury.

P7    1

SEC. 6.  

No reimbursement is required by this act pursuant to
2Section 6 of Article XIII B of the California Constitution because
3the only costs that may be incurred by a local agency or school
4district will be incurred because this act creates a new crime or
5infraction, eliminates a crime or infraction, or changes the penalty
6for a crime or infraction, within the meaning of Section 17556 of
7the Government Code, or changes the definition of a crime within
8the meaning of Section 6 of Article XIII B of the California
9Constitution.



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