Amended in Assembly April 9, 2015

Amended in Assembly March 17, 2015

Amended in Assembly March 4, 2015

California Legislature—2015–16 Regular Session

Assembly BillNo. 46


Introduced by Assemblybegin delete Membersend deletebegin insert Memberend insert Lackeybegin delete and Melendezend delete

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

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

(Coauthors: Senators Anderson, Bates, Huff, and Stone)

December 1, 2014


An act tobegin delete amend and repeal Sections 11350 and 11377 ofend deletebegin insert add Sections 11350.5 and 11377.5 toend insert the Health and Safety Code, relating to controlled substances.

LEGISLATIVE COUNSEL’S DIGEST

AB 46, as amended, Lackey. Controlled substances.

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(1) Existing

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begin insertExistingend insert 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),begin delete andend deletebegin insert orend insert flunitrazepam is a misdemeanor, punishable by imprisonment in the county jail for not more than one year.begin delete 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.end delete

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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. This bill would make other technical, clarifying changes.

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(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.

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

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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.

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This bill would make it a felony, punishable by imprisonment in the state prison for 16 months or 2 or 3 years, to possess Ketamine, GHB, or flunitrazepam with the intent to commit sexual assault. By creating a new crime, this bill would impose a state-mandated local program.

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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.

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

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Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: begin deleteno end deletebegin insertyesend insert.

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

P3    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.

13(d) Rohypnol, also known by its chemical name of
14flunitrazepam, and sometimes referred to as “roofies,” impairs
15judgment and leaves victims drugged with Rohypnol physically
16incapacitated. Memory loss and confusion under the influence of
17this drug makes victims more vulnerable to rape.

18(e) In order to deter the possession of Ketamine, GHB, and
19Rohypnol by sexual predators and to take steps to prevent the use
20of these drugs to incapacitate victims for purposes of sexual
21exploitation, it is necessary and appropriate that an individual who
22possesses one of these substancesbegin insert for predatory purposesend insert be subject
23to felony penalties.

begin delete
24

SEC. 2.  

Section 11350 of the Health and Safety Code is
25amended to read:

26

11350.  

(a) (1) Except as otherwise provided in this division,
27every person who possesses (1) a controlled substance specified
28in subdivision (b) or (c) of, or paragraph (1) or (2) of subdivision
29(e) of, or paragraph (1) of subdivision (f) of, Section 11054,
30specified in paragraph (14), (15), or (20) of subdivision (d) of
31Section 11054, or specified in subdivision (b) or (c) of Section
3211055, or specified in subdivision (h) of Section 11056, or (2) a
33controlled substance classified in Schedule III, IV, or V which is
34a narcotic drug, unless upon the written prescription of a physician,
35dentist, podiatrist, or veterinarian licensed to practice in this state,
36shall be punished by imprisonment in a county jail for not more
37than one year, except that such person shall instead be punished
38pursuant to subdivision (h) of Section 1170 of the Penal Code if
P4    1that person has one or more prior convictions for an offense
2specified in clause (iv) of subparagraph (C) of paragraph (2) of
3subdivision (e) of Section 667 of the Penal Code or for an offense
4requiring registration pursuant to subdivision (c) of Section 290
5of the Penal Code.

6(2) (A) Except as otherwise provided in subparagraph (B) and
7this division, every person who possesses a controlled substance
8specified in paragraph (3) of subdivision (e) of Section 11054 shall
9be punished by imprisonment in a county jail for not more than
10one year or pursuant to subdivision (h) of Section 1170 of the Penal
11Code.

12(B) Except as otherwise provided in this division, every person
13who has one or more prior convictions for an offense specified in
14 clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
15of Section 667 of the Penal Code or for an offense requiring
16registration pursuant to subdivision (c) of Section 290 of the Penal
17Code who possesses a controlled substance specified in paragraph
18(3) of subdivision (e) of Section 11054 shall be punished by
19imprisonment pursuant to subdivision (h) of Section 1170 of the
20Penal Code.

21(b) Except as otherwise provided in this division, whenever a
22person who possesses any of the controlled substances specified
23in subdivision (a), the judge may, in addition to any punishment
24provided for pursuant to subdivision (a), assess against that person
25a fine not to exceed seventy dollars ($70) with proceeds of this
26fine to be used in accordance with Section 1463.23 of the Penal
27Code. The court shall, however, take into consideration the
28defendant’s ability to pay, and no defendant shall be denied
29probation because of his or her inability to pay the fine permitted
30under this subdivision.

31(c) Except in unusual cases in which it would not serve the
32interest of justice to do so, whenever a court grants probation
33pursuant to a felony conviction under this section, in addition to
34any other conditions of probation which may be imposed, the
35following conditions of probation shall be ordered:

36(1) For a first offense under this section, a fine of at least one
37thousand dollars ($1,000) or community service.

38(2) For a second or subsequent offense under this section, a fine
39of at least two thousand dollars ($2,000) or community service.

P5    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(d) 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(e) 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.

16

SEC. 3.  

Section 11350 of the Health and Safety Code, as
17amended by Section 1 of Chapter 540 of the Statutes of 2014, is
18repealed.

19

SEC. 4.  

Section 11377 of the Health and Safety Code is
20amended to read:

21

11377.  

(a) Except as authorized by law and as otherwise
22provided in subdivision (b) or Section 11375, or in Article 3
23(commencing with Section 4050) of Chapter 9 of Division 2 of
24the Business and Professions Code, every person who possesses
25a controlled substance which is (1) classified in Schedule III, IV,
26or V, and which is not a narcotic drug, (2) specified in subdivision
27(d) of Section 11054, except paragraphs (13), (14), (15), and (20)
28of subdivision (d), (3) specified in paragraph (11) of subdivision
29(c) of Section 11056, (4) specified in paragraph (2) or (3) of
30subdivision (f) of Section 11054, or (5) specified in subdivision
31(d), (e), or (f) of Section 11055, unless upon the prescription of a
32physician, dentist, podiatrist, or veterinarian, licensed to practice
33in this state, shall be punished by imprisonment in a county jail
34for a period of not more than one year, except that such person
35may instead be punished pursuant to subdivision (h) of Section
361170 of the Penal Code if that person has one or more prior
37convictions for an offense specified in clause (iv) of subparagraph
38(C) of paragraph (2) of subdivision (e) of Section 667 of the Penal
39Code or for an offense requiring registration pursuant to
40subdivision (c) of Section 290 of the Penal Code.

P6    1(b) Every person who possesses a controlled substance specified
2in subdivision (g) of Section 11056 or specified in paragraph (13)
3of subdivision (d) of Section 11057 shall be punished by
4imprisonment in a county jail for not more than one year or
5pursuant to subdivision (h) of Section 1170 of the Penal Code.

6(c) The judge may assess a fine not to exceed seventy dollars
7($70) against any person who violates subdivision (a), with the
8proceeds of this fine to be used in accordance with Section 1463.23
9of the Penal Code. The court shall, however, take into consideration
10the defendant’s ability to pay, and no defendant shall be denied
11probation because of his or her inability to pay the fine permitted
12under this subdivision.

13(d) It is not unlawful for a person other than the prescription
14holder to possess a controlled substance described in subdivision
15(a) if both of the following apply:

16(1) The possession of the controlled substance is at the direction
17or with the express authorization of the prescription holder.

18(2) The sole intent of the possessor is to deliver the prescription
19to the prescription holder for its prescribed use or to discard the
20substance in a lawful manner.

21(e) This section does not permit the use of a controlled substance
22by a person other than the prescription holder or permit the
23distribution or sale of a controlled substance that is otherwise
24inconsistent with the prescription.

25

SEC. 5.  

Section 11377 of the Health and Safety Code, as
26amended by Section 2 of Chapter 540 of the Statutes of 2014, is
27repealed.

28

SEC. 6.  

(a) Sections 2 and 3 of this act amend the Safe
29Neighborhoods and Schools Act, Proposition 47, an initiative
30statute that was approved by the voters at the November 4, 2014,
31statewide general election, and shall become effective only when
32submitted to and approved by the voters.

33(b) The Secretary of State shall submit Sections 1, 2, and 3 of
34this act for approval by the voters at the next statewide election
35pursuant to Section 9040 of the Election Code.

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36begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 11350.5 is added to the end insertbegin insertHealth and Safety
37Code
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begin insert
38

begin insert11350.5.end insert  

(a) Except as otherwise provided in this division, a
39person who possesses a controlled substance specified in
40paragraph (3) of subdivision (e) of Section 11054 with the intent
P7    1to commit sexual assault shall be punished by imprisonment in the
2state prison for 16 months, or two or three years.

3(b) For purposes of this section, “sexual assault” includes, but
4is not limited to, a violation of paragraph (3) of subdivision (a) of
5Section 261 of the Penal Code, paragraph (2) of subdivision (a)
6of Section 262 of the Penal Code, subdivision (i) of Section 286
7of the Penal Code, subdivision (i) of Section 288a of the Penal
8Code, or subdivision (e) of Section 289 of the Penal Code.

end insert
9begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 11377.5 is added to the end insertbegin insertHealth and Safety
10Code
end insert
begin insert, to read:end insert

begin insert
11

begin insert11377.5.end insert  

(a) Except as otherwise provided in this division, a
12person who possesses a controlled substance specified in
13paragraph (11) of subdivision (c) of, or subdivision (g) of, Section
1411056, or paragraph (13) of subdivision (d) of Section 11057 with
15the intent to commit sexual assault shall be punished by
16imprisonment in the state prison for 16 months, or two or three
17years.

18(b) For purposes of this section, “sexual assault” includes, but
19is not limited to, a violation of paragraph (3) of subdivision (a) of
20Section 261 of the Penal Code, paragraph (2) of subdivision (a)
21of Section 262 of the Penal Code, subdivision (i) of Section 286
22of the Penal Code, subdivision (i) of Section 288a of the Penal
23Code, or subdivision (e) of Section 289 of the Penal Code.

end insert
24begin insert

begin insertSEC. 4.end insert  

end insert
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No reimbursement is required by this act pursuant to
25Section 6 of Article XIII B of the California Constitution because
26the only costs that may be incurred by a local agency or school
27district will be incurred because this act creates a new crime or
28infraction, eliminates a crime or infraction, or changes the penalty
29for a crime or infraction, within the meaning of Section 17556 of
30the Government Code, or changes the definition of a crime within
31the meaning of Section 6 of Article XIII B of the California
32Constitution.

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