Amended in Assembly March 17, 2015

Amended in Assembly March 4, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 46


Introduced by Assembly Members Lackey and Melendez

(Principal coauthors: Senators Galgiani, Nielsen, and Vidak)

(Coauthors: Assembly Members Travis Allen, Baker, Brough, Gallagher, Gonzalez,begin insert Hadley,end insert Kim,begin insert Linder,end insert Patterson, Rodriguez, Steinorth, Waldron, and Wilk)

(Coauthors: Senators Anderson,begin insert Bates,end insert Huff, and Stone)

December 1, 2014


An act to amendbegin insert and repealend insert Sections 11350 and 11377 of the Health and Safety Code, relating to controlled substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 46, as amended, Lackey. Controlled substances.

(1) Existing law, as amended by the Safe Neighborhoods and Schools Act, a measure approved by the voters at the November 4, 2014, statewide general election, generally provides that the possession of Ketamine, gamma hydroxybutyric acid (GHB), and flunitrazepam is a misdemeanor, punishable by imprisonment in the county jail for not more than one year. Existing law also provides that when a person has one or more prior convictions for certain enumerated crimes, his or her possession of GHB is a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years, and his or her possession of Ketamine and flunitrazepam is either a misdemeanor, punishable by imprisonment in the county jail for not more than one year, or a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years.

This bill would instead provide, without regard for a person’s prior convictions, that possession of Ketamine and flunitrazepam is either a misdemeanor, punishable by imprisonment in a county jail for not more than one year, or a felony, punishable by imprisonment in a county jail for 16 months, or 2 or 3 years. The bill would also provide that the possession of GHB by a person who does not have a prior conviction for those certain enumerated crimes is either a misdemeanor, punishable by imprisonment in a county jail for not more than one year, or a felony, punishable in a county jail for 16 months, or 2 or 3 years.begin insert end insertbegin insertThis bill would make other technical, clarifying changes.end insert

(2) Proposition 47 provides that its provisions may be amended by a statute that is consistent with and furthers its intent and that is passed by a 23 vote of each house of the Legislature and is signed by the Governor. Proposition 47 also provides that the Legislature may, by majority vote, amend, add, or repeal provisions to further reduce the penalties for offenses it addresses.

The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

This bill would provide that its provisions become effective only upon approval of the voters at the next statewide election, and would provide for the submission of this measure to the voters for approval at that election.

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

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

P2    1

SECTION 1.  

The Legislature finds and declares all of the
2following:

3(a) Ketamine, gamma hydroxybutyric acid (GHB), and
4Rohypnol are drugs often characterized as “date rape” drugs.

5(b) GHB is a central nervous system depressant that was
6approved for the treatment of narcolepsy. GHB has no color or
7taste, and is frequently combined with alcohol to commit sexual
8assault.

9(c) Ketamine causes unconsciousness, hallucinations, loss of
10body control, and numbing. Ketamine works very quickly, so
11victims drugged with Ketamine only have a few seconds to react
12before losing consciousness.

P3    1(d) Rohypnol, also known by its chemical name of
2flunitrazepam, and sometimes referred to as “roofies,” impairs
3judgment and leaves victims drugged with Rohypnol physically
4incapacitated. Memory loss and confusion under the influence of
5this drug makes victims more vulnerable to rape.

6(e) In order to deter the possession of Ketamine, GHB, and
7Rohypnol by sexual predators and to take steps to prevent the use
8of these drugs to incapacitate victims for purposes of sexual
9exploitation, it is necessary and appropriate that an individual who
10possesses one of these substances be subject to felony penalties.

11

SEC. 2.  

Section 11350 of the Health and Safety Code is
12amended to read:

13

11350.  

(a) (1) Except as otherwise provided in this division,
14every person who possesses (1) a controlled substance specified
15in subdivision (b) or (c) of, or paragraph (1) or (2) of subdivision
16(e) of, or paragraph (1) of subdivision (f) of, Section 11054,
17specified in paragraph (14), (15), or (20) of subdivision (d) of
18Section 11054, or specified in subdivision (b) or (c) of Section
1911055, or specified in subdivision (h) of Section 11056, or (2) a
20controlled substance classified in Schedule III, IV, or V which is
21a narcotic drug, unless upon the written prescription of a physician,
22dentist, podiatrist, or veterinarian licensed to practice in this state,
23shall be punished by imprisonment in a county jail for not more
24than one year, except that such person shall instead be punished
25pursuant to subdivision (h) of Section 1170 of the Penal Code if
26that person has one or more prior convictions for an offense
27specified in clause (iv) of subparagraph (C) of paragraph (2) of
28subdivision (e) of Section 667 of the Penal Code or for an offense
29requiring registration pursuant to subdivision (c) of Section 290
30of the Penal Code.

31(2) (A) Except as otherwise provided in subparagraph (B) and
32this division, every person who possesses a controlled substance
33specified in paragraph (3) of subdivision (e) of Section 11054 shall
34be punished by imprisonment in a county jail for not more than
35one year or pursuant to subdivision (h) of Section 1170 of the Penal
36Code.

37(B) Except as otherwise provided in this division, every person
38who has one or more prior convictions for an offense specified in
39 clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
40of Section 667 of the Penal Code or for an offense requiring
P4    1registration pursuant to subdivision (c) of Section 290 of the Penal
2Code who possesses a controlled substance specified in paragraph
3(3) of subdivision (e) of Section 11054 shall be punished by
4imprisonment pursuant to subdivision (h) of Section 1170 of the
5Penal Code.

6(b) Except as otherwise provided in this division, whenever a
7person who possesses any of the controlled substances specified
8in subdivision (a), the judge may, in addition to any punishment
9provided for pursuant to subdivision (a), assess against that person
10a fine not to exceed seventy dollars ($70) with proceeds of this
11fine to be used in accordance with Section 1463.23 of the Penal
12Code. The court shall, however, take into consideration the
13defendant’s ability to pay, and no defendant shall be denied
14probation because of his or her inability to pay the fine permitted
15under this subdivision.

16(c) Except in unusual cases in which it would not serve the
17interest of justice to do so, whenever a court grants probation
18pursuant to a felony conviction under this section, in addition to
19any other conditions of probation which may be imposed, the
20following conditions of probation shall be ordered:

21(1) For a first offense under this section, a fine of at least one
22thousand dollars ($1,000) or community service.

23(2) For a second or subsequent offense under this section, a fine
24of at least two thousand dollars ($2,000) or community service.

25(3) If a defendant does not have the ability to pay the minimum
26fines specified in paragraphs (1) and (2), community service shall
27be ordered in lieu of the fine.

begin insert

28(d) It is not unlawful for a person other than the prescription
29holder to possess a controlled substance described in subdivision
30(a) if both of the following apply:

end insert
begin insert

31(1) The possession of the controlled substance is at the direction
32or with the express authorization of the prescription holder.

end insert
begin insert

33(2) The sole intent of the possessor is to deliver the prescription
34to the prescription holder for its prescribed use or to discard the
35substance in a lawful manner.

end insert
begin insert

36(e) This section does not permit the use of a controlled substance
37by a person other than the prescription holder or permit the
38distribution or sale of a controlled substance that is otherwise
39inconsistent with the prescription.

end insert
P5    1begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 11350 of the end insertbegin insertHealth and Safety Codeend insertbegin insert, as
2amended by Section 1 of Chapter 540 of the Statutes of 2014, is
3repealed.end insert

begin delete
4

11350.  

(a) Except as otherwise provided in this division, every
5person who possesses (1) any controlled substance specified in
6subdivision (b) or (c), or paragraph (1) of subdivision (f) of Section
711054, specified in paragraph (14), (15), or (20) of subdivision (d)
8of Section 11054, or specified in subdivision (b) or (c) of Section
911055, or specified in subdivision (h) of Section 11056, or (2) any
10controlled substance classified in Schedule III, IV, or V which is
11a narcotic drug, unless upon the written prescription of a physician,
12dentist, podiatrist, or veterinarian licensed to practice in this state,
13shall be punished by imprisonment pursuant to subdivision (h) of
14Section 1170 of the Penal Code.

15(b) Except as otherwise provided in this division, every person
16who possesses any controlled substance specified in subdivision
17(e) of Section 11054 shall be punished by imprisonment in a county
18jail for not more than one year or pursuant to subdivision (h) of
19Section 1170 of the Penal Code.

20(c) Except as otherwise provided in this division, whenever a
21person who possesses any of the controlled substances specified
22in subdivision (a) or (b), the judge may, in addition to any
23punishment provided for pursuant to subdivision (a) or (b), assess
24against that person a fine not to exceed seventy dollars ($70) with
25proceeds of this fine to be used in accordance with Section 1463.23
26of the Penal Code. The court shall, however, take into consideration
27 the defendant’s ability to pay, and no defendant shall be denied
28probation because of his or her inability to pay the fine permitted
29under this subdivision.

30(d) Except in unusual cases in which it would not serve the
31interest of justice to do so, whenever a court grants probation
32pursuant to a felony conviction under this section, in addition to
33any other conditions of probation which may be imposed, the
34following conditions of probation shall be ordered:

35(1) For a first offense under this section, a fine of at least one
36thousand dollars ($1,000) or community service.

37(2) For a second or subsequent offense under this section, a fine
38of at least two thousand dollars ($2,000) or community service.

P6    1(3) If a defendant does not have the ability to pay the minimum
2fines specified in paragraphs (1) and (2), community service shall
3be ordered in lieu of the fine.

4(e) It is not unlawful for a person other than the prescription
5holder to possess a controlled substance described in subdivision
6(a) if both of the following apply:

7(1) The possession of the controlled substance is at the direction
8or with the express authorization of the prescription holder.

9(2) The sole intent of the possessor is to deliver the prescription
10to the prescription holder for its prescribed use or to discard the
11substance in a lawful manner.

12(f) This section does not permit the use of a controlled substance
13by a person other than the prescription holder or permit the
14distribution or sale of a controlled substance that is otherwise
15inconsistent with the prescription.

end delete
16

begin deleteSEC. 3.end delete
17begin insertSEC. 4.end insert  

Section 11377 of the Health and Safety Code is
18amended to read:

19

11377.  

(a) Except as authorized by law and as otherwise
20provided in subdivision (b) or Section 11375, or in Article 3
21(commencing with Section 4050) of Chapter 9 of Division 2 of
22the Business and Professions Code, every person who possesses
23a controlled substance which is (1) classified in Schedule III, IV,
24or V, and which is not a narcotic drug, (2) specified in subdivision
25(d) of Section 11054, except paragraphs (13), (14), (15), and (20)
26of subdivision (d), (3) specified in paragraph (11) of subdivision
27(c) of Section 11056, (4) specified in paragraph (2) or (3) of
28subdivision (f) of Section 11054, or (5) specified in subdivision
29(d), (e), or (f) of Section 11055, unless upon the prescription of a
30physician, dentist, podiatrist, or veterinarian, licensed to practice
31in this state, shall be punished by imprisonment in a county jail
32for a period of not more than one year, except that such person
33may instead be punished pursuant to subdivision (h) of Section
341170 of the Penal Code if that person has one or more prior
35convictions for an offense specified in clause (iv) of subparagraph
36(C) of paragraph (2) of subdivision (e) of Section 667 of the Penal
37Code or for an offense requiring registration pursuant to
38subdivision (c) of Section 290 of the Penal Code.

39(b) Every person who possesses a controlled substance specified
40in subdivision (g) of Section 11056 or specified in paragraph (13)
P7    1of subdivision (d) of Section 11057 shall be punished by
2imprisonment in a county jail for not more than one year or
3pursuant to subdivision (h) of Section 1170 of the Penal Code.

4(c) The judge may assess a fine not to exceed seventy dollars
5($70) against any person who violates subdivision (a), with the
6proceeds of this fine to be used in accordance with Section 1463.23
7of the Penal Code. The court shall, however, take into consideration
8the defendant’s ability to pay, and no defendant shall be denied
9probation because of his or her inability to pay the fine permitted
10under this subdivision.

begin insert

11(d) It is not unlawful for a person other than the prescription
12holder to possess a controlled substance described in subdivision
13(a) if both of the following apply:

end insert
begin insert

14(1) The possession of the controlled substance is at the direction
15or with the express authorization of the prescription holder.

end insert
begin insert

16(2) The sole intent of the possessor is to deliver the prescription
17to the prescription holder for its prescribed use or to discard the
18substance in a lawful manner.

end insert
begin insert

19(e) This section does not permit the use of a controlled substance
20by a person other than the prescription holder or permit the
21distribution or sale of a controlled substance that is otherwise
22inconsistent with the prescription.

end insert
23begin insert

begin insertSEC. 5.end insert  

end insert

begin insertSection 11377 of the end insertbegin insertHealth and Safety Codeend insertbegin insert, as
24amended by Section 2 of Chapter 540 of the Statutes of 2014, is
25repealed.end insert

begin delete
26

11377.  

(a) Except as authorized by law and as otherwise
27provided in subdivision (b) or Section 11375, or in Article 7
28(commencing with Section 4211) of Chapter 9 of Division 2 of
29the Business and Professions Code, every person who possesses
30any controlled substance which is (1) classified in Schedule III,
31IV, or V, and which is not a narcotic drug, (2) specified in
32subdivision (d) of Section 11054, except paragraphs (13), (14),
33(15), and (20) of subdivision (d), (3) specified in paragraph (11)
34of subdivision (c) of Section 11056, (4) specified in paragraph (2)
35or (3) of subdivision (f) of Section 11054, or (5) specified in
36subdivision (d), (e), or (f) of Section 11055, unless upon the
37prescription of a physician, dentist, podiatrist, or veterinarian,
38licensed to practice in this state, shall be punished by imprisonment
39in a county jail for a period of not more than one year or pursuant
40to subdivision (h) of Section 1170 of the Penal Code.

P8    1(b) (1) Any person who violates subdivision (a) by unlawfully
2possessing a controlled substance specified in subdivision (f) of
3Section 11056, and who has not previously been convicted of a
4violation involving a controlled substance specified in subdivision
5(f) of Section 11056, is guilty of a misdemeanor.

6(2) Any person who violates subdivision (a) by unlawfully
7possessing a controlled substance specified in subdivision (g) of
8Section 11056 is guilty of a misdemeanor.

9(3) Any person who violates subdivision (a) by unlawfully
10possessing a controlled substance specified in paragraph (7) or (8)
11of subdivision (d) of Section 11055 is guilty of a misdemeanor.

12(4) Any person who violates subdivision (a) by unlawfully
13possessing a controlled substance specified in paragraph (8) of
14subdivision (f) of Section 11057 is guilty of a misdemeanor.

15(c) In addition to any fine assessed under subdivision (b), the
16judge may assess a fine not to exceed seventy dollars ($70) against
17any person who violates subdivision (a), with the proceeds of this
18fine to be used in accordance with Section 1463.23 of the Penal
19Code. The court shall, however, take into consideration the
20defendant’s ability to pay, and no defendant shall be denied
21probation because of his or her inability to pay the fine permitted
22under this subdivision.

23(d) It is not unlawful for a person other than the prescription
24holder to possess a controlled substance described in subdivision
25(a) if both of the following apply:

26(1) The possession of the controlled substance is at the direction
27or with the express authorization of the prescription holder.

28(2) The sole intent of the possessor is to deliver the prescription
29to the prescription holder for its prescribed use or to discard the
30substance in a lawful manner.

31(e) This section does not permit the use of a controlled substance
32by a person other than the prescription holder or permit the
33distribution or sale of a controlled substance that is otherwise
34inconsistent with the prescription.

end delete
35

begin deleteSEC. 4.end delete
36begin insertSEC. 6.end insert  

(a) Sections 2 and 3 of this act amend the Safe
37Neighborhoods and Schools Act, Proposition 47, an initiative
38statute that was approved by the voters at the November 4, 2014,
39statewide general election, and shall become effective only when
40submitted to and approved by the voters.

P9    1(b) The Secretary of State shall submit Sections 1, 2, and 3 of
2this act for approval by the voters at the next statewide election
3pursuant to Section 9040 of the Election Code.



O

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