BILL ANALYSIS Ó
AB 46
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Date of Hearing: April 29, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
AB
46 (Lackey) - As Amended April 23, 2015
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Urgency: No State Mandated Local Program: YesReimbursable:
No
SUMMARY:
This bill makes the possession of specified controlled
substances (gamma hydroxybutyric acid (GHB), ketamine or
flunitrazepam, also known as Rohypnol), with the intent to
AB 46
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commit sexual assault, as defined, a felony punishable in the
state prison for 16 months or two or three years.
FISCAL EFFECT:
Potentially moderate ongoing out-year costs in excess of
$150,000 (GF) for increased state prison commitments. According
to the California Department of Corrections (CDCR), the
contracted out-of-state annual bed rate is $29,000. In 2013-14,
there were 22 state prison commitments for rape convictions
where the victim was prevented from resisting by an intoxicating
substance, and an unknown number were prevented. If intent to
commit sexual assault, with any of the three substances listed
were proven for three individuals per year, the cost to CDCR
would be $87,000 (GF) the first year, $174,000 (GF) the second
year, etc. for this new crime.
COMMENTS:
1)Purpose. According to the author, "In November 2014,
Proposition 47 was approved by voters and reclassified many
crimes that were previously eligible to be charged as either
as a felony, or a misdemeanor, to solely misdemeanor charges.
This included reducing the penalties for illegal possession of
the drugs Rohypnol and GHB -commonly known as 'date rape'
drugs. "
"The law enforcement community and sexual assault survivor
advocate organizations expressed concern over this change and
how it would weaken current sexual assault laws. "
"[AB 46] will now create a new felony crime of possession with
intent to commit sexual assault for the commonly known date
rape drugs of Rohypnol, GHB and ketamine."
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"This will allow prosecutors to bring felony charges against a
perpetrator who has been found in possession of these drugs
and has taken steps to use them to facilitate a sexual
assault. In cases where the assault was fortunately prevented,
this new crime created by AB 46 will allow serious punishment
for the perpetrator.
2)Background. On November 4, 2014, California voters approved
Proposition 47, also known as the Safe Neighborhoods and
Schools Act, which reduced penalties for certain offenders
convicted of nonserious and nonviolent property and drug
crimes. Proposition 47 also allows inmates serving sentences
for crimes affected by the reduced penalties to apply to be
resentenced.
Current law provides that the possession of specified
controlled substances including ketamine, flunitrazepam, and
GHB, unless upon the prescription of a physician, dentist,
podiatrist, or veterinarian licensed to practice in this
state, is a misdemeanor punishable by up to one year in a
county jail, except for a person who has one or more prior
convictions for a specified violent felony or has been
convicted of a prior offense requiring the person to register
as a sex offender, then the penalty is a felony.
Also under current law, every person guilty of administering
to another any chloroform, ether, laudanum, or any controlled
substance, anesthetic, or intoxicating agent, with intent
thereby to enable or assist himself or herself or any other
person to commit a felony, is guilty of a felony punishable by
imprisonment in the state prison for 16 months, or two or
three years. Current law also states that rape is an act of
sexual intercourse accomplished where a person is prevented
from resisting by any intoxicating or anesthetic substance, or
any controlled substance, and this condition was known, or
reasonably should have been known, by the accused.
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3)"Club Drugs." Ketamine, GHB, and flunitrazepam are commonly
designated as "club drugs" due to their association with
raves, nightclubs, concerts, and parties. Other drugs included
in this designation are MDMA (ecstasy), methamphetamine, and
cocaine. Club drugs became popular in the 1990s and tend to
be used by youth and young adults to heighten mood, increase
extraversion and physical energy, and intensify the senses.
Although a person may be surreptitiously drugged with
Rohypnol, GHB, or ketamine in order to incapacitate that
person, it is much more common for a person to consume these
drugs voluntarily for their intoxicating effects.
This bill targets persons who possess these drugs for
predatory purposes, rather than those who merely possess these
drugs for personal use. This will ensure that victims of these
crimes who may have consumed these drugs voluntarily prior to
being assaulted will not have to fear prosecution of a felony
when deciding whether to report the incident.
4)Related Legislation. SB 333 (Galgiani), pending in Senate
Public Safety, would make possession of GHB, ketamine or
flunitrazepam an alternate felony-misdemeanor.
5)Prior Legislation:
a) SB 649 (Leno), of the 2013-2014 Legislative Session,
would have made the simple possession for personal use of
cocaine, cocaine base, heroin, opium, and other specified
narcotics, opiates and hallucinogens listed in the
controlled substance schedule an alternate
felony/misdemeanor, rather than a straight felony. SB 649
was vetoed. In his message, the Governor cited the
realignment legislation as the proper vehicle to examine
the current sentencing structure.
b) SB 1506 (Leno), of the 2011-2012 Legislative Session,
would have made the unlawful possession of specified
controlled substances a misdemeanor. SB 1506 failed
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passage on the Senate floor.
c) SB 1067 (Horton), of the 2003-2004 Legislative session,
would have excluded the drugs GHB, rohypnol, and ketamine
from coverage by the term "nonviolent drug possession
offense" thereby making possession of these drugs
ineligible for probation and drug treatment under
Proposition 36, approved by the voters on November 7, 2000.
SB 1067 failed passage in Assembly Public Safety.
Analysis Prepared by:Pedro R. Reyes / APPR. / (916)
319-2081