BILL ANALYSIS Ó
AB 730
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Date of Hearing: April 7, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
730 (Quirk) - As Introduced February 25, 2015
SUMMARY: Provides that "transportation" of marijuana,
phencyclidine (PCP), or mushrooms shall be defined to mean
transportation for purposes of sale. Specifically, this bill:
1)Defines "transport" for purposes of the statute prohibiting
the transportation of not more than 28.5 grams of marijuana or
other concentrated cannabis as "transport for sale."
2)Defines "transport" for purposes of the statute prohibiting
the transportation of PCP or any of its analogs or precursors
as "transport for sale."
3)Defines "transport" for purposes of the statute prohibiting
the transportation of any spores or mycelium capable of
producing mushrooms or other materials which contain
psilocybin or psilocin as "transport for sale."
4)Provides that these provisions of law do not preclude or limit
prosecution under an aiding and abetting theory, or conspiracy
offenses.
EXISTING LAW:
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1)Provides that every person who transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish,
administer, or give away, or attempts to import into this
state or transport marijuana shall be punished in the county
jail pursuant to realignment for a period of two, three or
four years. (Health & Saf. Code, § 11360, subd. (a).)
2)Provides that every person who transports, imports into this
state, sells, furnishes, administers, or gives away, or offers
to transport, import into this state, sell, furnish,
administer, or give away, or attempts to import into this
state or transport PCP or any of its specified analogs or
precursors shall be punished by imprisonment pursuant to
realignment for a period of three, four, or five years.
(Health & Saf. Code, § 11379.5, subd. (a).)
3)Provides that every person who transports, imports into this
state, sells, furnishes, gives away, or offers to transport,
import into this state, sell, furnish, or give away any spores
or mycelium capable of producing mushrooms or other material
which contain a specified controlled substance shall be
punished by imprisonment in the county jail for a period of
not more than one year or in the state prison. (Health & Saf.
Code, § 11391.)
4)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, administer
or give away, or attempts to import into this state or
transport cocaine, cocaine base, or heroin, or any controlled
substance which is a narcotic drug, without a written
prescription shall be punished by imprisonment pursuant to
realignment for three, four, or five years. Specifies that
"transport" means transportation for sale. (Health & Saf.
Code, § 11352.)
5)Provides that every person that transports, imports into the
state, sells, furnishes, administers, or gives away, or offers
to transport, import into the state, sell, furnish, or give
away, or attempts to import into this state or transport
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methamphetamine, or any controlled substance, which is not a
narcotic, listed in the controlled substance schedule without
a written prescription shall be punished by imprisonment for
two, three, or four years. Specifies that transport means
transportation for sale. (Health & Saf. Code, § 11379.)
6)Classifies controlled substances in five schedules according
to their danger and potential for abuse. Schedule I
controlled substances have the greatest restrictions and
penalties, including prohibiting the prescribing of a Schedule
I controlled substance. (Health & Saf. Code, §§ 11054 to
11058.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "AB 730 is about
fairness and consistency. Two years ago, the Legislature
clarified that 'transportation' of illegal drugs was intended
to apply to transportation of the drugs for sale, not for
personal use. However, the Legislature overlooked certain
statutes in its deliberations, resulting in a situation where
transportation of some drugs for personal use can be charged
only as a possession offense, while transportation of other
drugs for personal use can be charged as both possession and
transportation. AB 730 removes this unfair inconsistency and
makes it clear that in Health & Safety Code §11360, §11379.5
and §11391 'transport' of those specified drugs means
transportation with intent to sell."
2)Transportation of a Controlled Substance: Previously, a
person could be convicted of transportation of a controlled
substance if such a substance was minimally moved, regardless
of the amount of the controlled substance or intent of the
possessor. "Transportation of a controlled substance is
established by simply carrying or conveying a usable quantity
of a controlled substance with knowledge of its presence and
illegal character." (See e.g., People v. Emmal (1998) 68
Cal.App.4th 1313, 1316.) Courts had interpreted the word
"transports" to include transport of controlled substances for
personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135;
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People v. Eastman (1993) 13 Cal.App.4th 668.)
Effective January 1, 2014, three statutes prohibiting
transportation of a controlled substance were amended to add
an intent-to-sell element. Specifically the statutes added a
new subdivision which states "For purposes of this section
'transports' means to transport for sale."
However, other transportation-of-controlled-substance statutes
were not affected. This bill requires that a person
transporting marijuana, phencyclidine, or mushrooms have the
intent to sell the controlled substance in order to be
convicted of felony transportation of a controlled substance,
eliminating the possibility of a person transporting a small
amount of a controlled substance for personal use of being
convicted of felony transportation.
3)Equal Protection: The Equal Protection Clause of the
Fourteenth Amendment to the U.S. Constitution is essentially a
direction that all persons similarly situated should be
treated alike. (Lawrence v. Texas (2003) 539 U.S. 558, 579
(conc. opn. of O'Connor J., citations and quote marks
omitted.) Under current law, a person can by punished more
severely for transporting marijuana for personal use than for
transporting methamphetamine or cocaine. That they are
treated differently raises equal protection concerns.
"The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a
classification that affects two or more similarly situated
groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d
522, 530; Cooley v. Superior Court (2002) 29 Cal.4th 228,
253.) Under the equal protection clause, a court does not
inquire "whether persons are similarly situated for all
purposes, but 'whether they are similarly situated for
purposes of the law challenged.'" (Cooley v. Superior Court,
supra, 29 Cal.4th at p. 253, quoting People v. Gibson (1988)
204 Cal.App.3d 1425, 1438.) "The 'similarly situated'
prerequisite simply means that an equal protection claim
cannot succeed, and does not require further analysis, unless
there is some showing that the two groups are sufficiently
similar with respect to the purpose of the law in question
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that some level of scrutiny is required in order to determine
whether the distinction is justified. (People v. Nguyen
(1997) 54 Cal.App.4th 705, 714.)
Although "a defendant convicted of one crime is not similarly
situated to a defendant convicted of a different crime"
(People v. Jacobs (1984) 157 Cal.App.3d 797, 800; People v.
Barrerra (1993) 14 Cal.App.4th 1555, 1565), defendants who
have committed the "same quality" of offense are similarly
situated. (Skinner v. Oklahoma (1942) 316 U.S. 535, 541
[thieves and embezzlers similarly situated]; In re King (1970)
3 Cal.3d 226 [out-of-state fathers who fail to support
children are similarly situated with in-state nonsupporting
fathers].)
The two groups at issue here are arguably similarly situated for
purposes of these statutes. Where no sales element is proven,
each group is transporting controlled substances for personal
use. The only difference is the specific drug possessed for
personal use. All other parts of the contested act, such as
the method of transportation, are the same.
If it is found that that the groups are similarly situated, in
the second prong of an equal protection analysis, the court
will apply different levels of scrutiny to different types of
classifications. "In the absence of a classification that is
inherently invidious or that impinges upon fundamental rights,
a state statute is to be upheld against equal protection
attack if it is rationally related to the achievement of
legitimate governmental ends." (Gates v. Superior Court
(1995) 32 Cal.App.4th 481, 514.)
At first blush, the most obvious reason for the differing
treatment is that controlled substances are on different
schedules for drug classification. Marijuana is a schedule I
drug while methamphetamine is a schedule II drug. Although
schedule II through V drugs may be prescribed under certain
conditions (see e.g., Health & Saf. Code, § 11158), no such
provisions exist for schedule I.
However, California recognizes the use of marijuana for
medicinal purposes. (See Health & Saf. Code, § 11362.5 et
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seq., the Compassionate Use Act.) Moreover, marijuana is
certainly treated differently than any other schedule I drug
throughout the Penal Code. The Legislature has deemed that
mere possession of marijuana is a less serious offense than
possession of methamphetamine. Possession of less than 28.5
grams of marijuana is an infraction, while possessing more
than that amount is an misdemeanor warranting not more than
six months in jail. (Health & Saf. Code, § 11357, subds. (b)
& (c).) Compare that with possession of any usable amount of
methamphetamine, which until the passage of Proposition 47 was
an alternate felony/misdemeanor offense, and which is now a
misdemeanor carrying a jail term of up to one year. (Health &
Saf. Code, § 11377, subd. (a).) It stands to reason, then,
that transporting marijuana for personal use should carry less
of a penalty (or at least an equal penalty) than transporting
methamphetamine. However, the opposite is true. This by
itself supports the notion of an equal protection violation as
to transportation of marijuana. This bill would address those
equal protection concerns.
4)Argument in Support: According to the Conference of
California Bar Associations, a co-sponsor of this bill, "AB
730 would conform the definition of 'transportation' of drugs
in Health & Safety Code §§11360, 11379.5 and 11391 with the
changes made in 2013 to Health & Safety Code §§11352 and
11379, making it applicable solely to transport for sale, not
for personal use. This will add common sense, consistency and
fairness to the statutes being conformed. It will also
prevent problems resulting from the current inconsistency
between the various statutes.
"Existing law penalizes the transportation of drugs more
severely than the simple possession of drugs because
transportation is most often linked with the sale of drugs.
However, California courts have interpreted the term
'transportation' in the drug statutes in its most literal
sense - moving a prohibited drug from point A to point B,
regardless of intent. This means that a person riding a
bicycle with drugs can be guilty of transportation (People. v.
LaCross (2001) 91 Cal.App.4th 182), as can a person simply
walking with drugs (People v. Ormiston (2003) 105 Cal. App.
4th 676), even if those drugs are for personal use. These
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rulings have created problems for persons otherwise eligible
for Proposition 36 drug probation, with appellate courts
allowing a judge to determine whether transportation was for
sale even though a jury had acquitted the defendant of
possession for sale (People v. Dove (2004) 124 Cal.App.4th
1.).
"In 2013, the Legislature enacted AB 721 (Bradford), Chapter
504, which amended Health & Safety Code §§11379 and 11352 to
specify that 'transportation' of specified drugs, including
cocaine and methamphetamine, meant transportation for sale,
not for personal use. At the time, however, the Legislature
neglected to make the same change to three other anti-drug
sections of the Health and Safety Code - including those
dealing with marijuana (§11360) and with PCP and other drugs
(§11379.5) - that impose harsher penalties for transportation,
even if the drug possession is for personal use and the
transportation is simply incidental. In fact, the
Legislature's failure to make a consistent change in these
statutes can and will be taken by the courts as evidence of
the Legislature's intent to impose the higher penalty on
incidental transportation.
"AB 730 corrects this oversight by making the
transportation-related language in all these anti-drug
statutes consistent, with 'transportation' meaning transport
for sale, not transport incidental to personal use. Simple
possession remains a crime - it is not decriminalized. The
only change is that a person walking down the street with
drugs can only be charged with simple possession unless there
is evidence the transportation is for sale."
5)Argument in Opposition: None submitted
6)Related Legislation:
a) AB 46 (Lackey), would reverse provisions recently
enacted by Proposition 47 related to possession for
personal use of specified controlled substances. AB 46 is
pending hearing in this committee.
b) AB 947 (Chávez), would make the crime of unlawfully
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possess any amount of cocaine base, cocaine, heroin,
methamphetamine, or phencyclidine while armed with a
loaded, operable firearm punishable by imprisonment in the
county jail rather than state prison. AB 947 is pending
hearing in this committee.
c) SB 333 (Galgiani), is substantially similar to AB 46.
SB 333 is pending in the Senate Public Safety Committee.
7)Prior Legislation: AB 721 (Bradford) Chapter 504, Statutes of
2013, made the transportation of specified controlled
substances a felony only if the individual transports the
controlled substance for purposes of sale.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice (Co-Sponsor)
Conference of California Bar Associations (Co-Sponsor)
American Civil Liberties Union
California NORML
California Public Defenders Association
Drug Policy Alliance
Legal Services for Prisoners with Children
Taxpayers for Improving Public Safety
Opposition
None
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744
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