BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 730|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 730
Author: Quirk (D)
Introduced:2/25/15
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE: 5-2, 6/9/15
AYES: Hancock, Glazer, Leno, Liu, Monning
NOES: Anderson, Stone
ASSEMBLY FLOOR: 49-29, 4/20/15 - See last page for vote
SUBJECT: Controlled substances: transport
SOURCE: Author
DIGEST: This bill provides that a conviction for transportation
of marijuana, psilocybin mushrooms or phencyclidine (PCP)
requires proof of intent to sell, as is currently the case for
cocaine, heroin and numerous other drugs.
ANALYSIS:
Existing law:
1)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.)
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2)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)-(b).)
3)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).)
4)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.)
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, 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. (Health & Saf.
Code, § 11352.) For purpose of this section, "transport"
means to transport for sale.
6)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
methamphetamine, or any controlled substance, which is not a
narcotic, listed in the controlled substance schedule without
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a written prescription shall be punished by imprisonment for
two, three, or four years. (Health & Saf. Code, § 11379.)
For purposes of this section, "transport" means to transport
for sale.
This bill:
1)Provides that to "transport" psilocybin mushrooms, PCP, or
marijuana shall be defined to mean to "transport for sale."
2)Provides that these provisions of law do not preclude or limit
prosecution under an aiding and abetting, or conspiracy
offenses.
Background
Prior to January 1, 2014, a person in possession of a controlled
substance (a drug that cannot be possessed without a
prescription) could be convicted felony drug transportation if
the person even minimally moved the drug, regardless of the
amount of the drug possessed or the intent of the possessor.
"Transportation ?is established by simply carrying or conveying
a usable quantity of a controlled substance with knowledge of
its presence and illegal character." (People v. Emmal (1998) 68
Cal.App.4th 1313, 1316.) The crime includes transport of
controlled substances for personal use. (People v. Rogers (1971)
5 Cal.3d 129, 134-135.)
In 2013, AB 721 (Bradford, Chapter 504) amended two Health and
Safety Code sections - 11352 and 11379 - so as to provide the
following: "For purposes of this section 'transports' means to
transport for sale." The new crime of transportation for sale
applies to numerous drugs, including heroin, cocaine,
methamphetamine. However, this new definition of drug
transportation does not apply to marijuana, PCP, or psilocybin
mushrooms. This bill, AB 730, requires that a person have the
intent to sell these controlled substance in order to be
convicted of felony transportation.
The Equal Protection Clause of the Fourteenth Amendment to the
U.S. Constitution requires that all persons similarly situated
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be treated alike under the law. (Lawrence v. Texas (2003) 539
U.S. 558, 579.) Under existing 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.
SACPA - the Substance Abuse and Crime Prevention Act - requires
that defendants be offered drug treatment on probation, without
incarceration, if the defendant committed a non-violent drug
possession offense. Non-violent drug possession includes
"transportation for personal use." (Pen. Code § 1210.1, subd.
(a); People v. Harris (2009) 171 Cal.App.4th 1488, 1496.)
Under existing law, a conviction for transportation of heroin,
cocaine, methamphetamine or one of a list of numerous other
drugs necessarily involves the intent to sell and excludes the
defendant from SACPA. Conversely, a person who moved a
controlled substance, but intended to personally use the drug,
would clearly be eligible for treatment under SACPA, unless
otherwise excluded.
However, transportation of less than an ounce of marijuana,
psilocybin mushrooms or PCP does not include an element that the
defendant intended to sell the drug. Eligibility for treatment
under SACPA of a defendant convicted of transportation of one of
these three drugs must be determined by a special jury finding
or by the court at sentencing. (People v. Harris, supra, 171
Cal.App.4th at p. 1496-1499.) As SACPA involves a reduction in
penalty, the defendant bears the burden of proving that he or
she transported a drug for personal use, not commerce. This
bill requires the prosecution to prove intent to sell to convict
a defendant of transportation of marijuana. If the element is
not proved, a defendant in possession of the drug while moving
or traveling would only be convicted of simple possession, and
thus would be eligible for treatment under SACPA.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified 6/9/15)
American Civil Liberties Union
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California Attorneys for Criminal Justice
California Public Defenders
Californians for Safety and Justice
Conference of California Bar Associations
Drug Policy Alliance
Legal Services for Prisoners with Children
National Organization for the Reform of Marijuana Laws,
California Chapter
Taxpayers for Improving Public Safety
OPPOSITION: (Verified6/9/15)
None received
ASSEMBLY FLOOR: 49-29, 4/20/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,
Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,
Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gipson,
Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández,
Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Mullin,
Nazarian, Obernolte, O'Donnell, Quirk, Rendon, Ridley-Thomas,
Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber,
Williams, Wood, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chávez,
Dahle, Beth Gaines, Gallagher, Gatto, Grove, Harper, Irwin,
Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes,
Medina, Melendez, Olsen, Patterson, Salas, Steinorth, Wagner,
Waldron, Wilk
NO VOTE RECORDED: Chang, Perea
Prepared by:Jerome McGuire / PUB. S. /
6/10/15 10:51:03
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