BILL ANALYSIS Ó
AB 849
Page 1
Date of Hearing: April 28, 2015
Chief Counsel: Gregory Pagan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
849 (Bonilla) - As Introduced February 26, 2015
As Proposed to be Amended in Committee
SUMMARY: Makes it a felony for any person to extract
tetrahydrocannabinol (THC) or any other cannabinoids, by means
of solvent extraction, from marijuana and cause an explosion
resulting in great bodily injury, or damage to structures,
property, or forest land. Specifically, this bill:
1)Provides that any person who extracts, or attempts to extract
THC or any other cannabinoids, by means of solvent extraction,
from marijuana leaves, flowers, or stalks and causes an
explosion that results in great bodily injury shall be
punished by imprisonment in a county jail for two, four, or
six years, or by imprisonment in a county jail for a term not
exceeding one year, by a fine not to exceed $10, 000, or both
a fine and imprisonment.
2)Provides that any person who extracts, or attempts to extract
THC or any other cannabinoids, by means of solvent extraction,
from marijuana leaves, flowers, or stalks and causes an
explosion that results in damage to an inhabited structure or
inhabited property shall be punished by imprisonment in a
county jail for two, three, or four years, or by imprisonment
in a county jail for a term not to exceed one year, by a fine
not to exceed $10,000, or by both a fine and imprisonment.
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3)Provides that any person who extracts, or attempts to extract
THC or any other cannabinoids, by means of solvent extraction,
from marijuana leaves, flowers, or stalks and causes an
explosion that results in damage to forest land shall be
punished by imprisonment in a county jail for 16 months, two,
or three years, be punished by imprisonment in a county jail
for a term not to exceed one year, by a fine not to exceed
$10,000, or by both a fine and imprisonment.
4)Any person who extracts, or attempts to extract THC or other
cannabinoids, by means of solvent extraction, from marijuana
leaves, flowers, or stalks and causes an explosion that
results in damage to property is guilty of a misdemeanor
punishable by imprisonment in a county jail for a term not to
exceed six months, by a fine not to exceed $1,000, or by both
a fine and imprisonment. For purposes of this paragraph
unlawfully causing an explosion that damages property does not
include an explosion that damages his or her own personal
property unless there is injury to another person or to
another person's structure, forest land, or property.
EXISTING LAW:
1)Provides that a person is guilty of unlawfully causing a fire
when he or she recklessly sets fire to or causes to be burned
any structure, forestland, or property.
a) Unlawfully causing a fire that causes great bodily
injury is a felony, punishable by imprisonment in the state
prison for two, four, or six years, or by imprisonment in
the county jail not to exceed one year, or by a fine, or by
both imprisonment and a fine.
b) Unlawfully causing a fire that causes an inhabited
structure or property to burn is a felony, punishable by
imprisonment in the state prison for two, three, or four
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years, or by imprisonment in the county jail not to exceed
one year, or by a fine, or by both imprisonment and a fine.
c) Unlawfully causing a fire of a structure or forestland
is a felony punishable by imprisonment in the state prison
for 16 months, 2, or 3 years, or by imprisonment in the
county jail not to exceed one year, or by a fine, or by
both imprisonment and a fine.
d) Unlawfully causing a fire of property is a misdemeanor.
(Pen. Code, § 452.)
2)Provides that any person convicted of reckless fire setting
shall be punished by a one, two, or three year enhancement for
each of the following circumstances found to be true:
a) The defendant was previously convicted of felony arson;
b) A peace officer, firefighter, or other emergency
personnel suffered great bodily injury;
c) The defendant proximately caused great bodily injury to
more than one victim in a single incident; or,
d) The defendants proximately caused multiple structures to
burn. (Pen. Code, § 452.1.)
3)States that the following terms have the following meanings:
a) "Structure" means any building, or commercial or public
tent, bridge, tunnel, o power plant;
b) "Forest land" means any brush covered land, cut over
land, forest, grasslands, or woods;
c) "Property" means real property or personal property,
other than a structure or forest land;
d) "Inhabited" means being used for dwelling purposes
whether occupied or not. "Inhabited structure" and
"inhabited property" do not include real property on which
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an inhabited structure or an inhabited property is located;
e) "Maliciously" imports a wish to vex, defraud, annoy, or
injure another person, or an intent to do a wrongful act,
established either by proof or presumption of law,
f) "Recklessly" means a person is aware of and consciously
disregards a substantial and unjustifiable risk that his or
her act will set fire to, burn, or cause to burn a
structure, forest land, or property. The risk shall be of
such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation. A person
who creates such a risk but is unaware thereof solely by
reason of voluntary intoxication also acts recklessly with
respect thereto. (Pen. Code, § 450.)
4)Provides that any person, firm, or corporation who, except as
specified, within this state, possesses any destructive
device, other than fixed ammunition of a caliber greater than
.60 caliber is guilty of a public offense. A person, firm, or
corporation convicted of this offense shall be punished
imprisonment in the county jail for a term not to exceed one
year, or in the state prison, or by a fine not to exceed
$10,000, or by both. (Pen. Code, § 18710.).
5)States that any person who recklessly or maliciously has in
possession any destructive device or any explosive in any of
the following places is guilty of a felony punishable by
imprisonment in a county jail for two, four, or six years:
a) On a public street or highway;
b) In or near any theater, hall, school, college, church,
hotel, or other public building,
c) In or near any private habitation;
d) In, on, or near any aircraft, railway passenger train,
car, cable road, cable car, or vessel engaged in carrying
passengers for hire; and,
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e) In, on, or near any other public place ordinarily passed
by human beings. (Pen Code, § 18715.)
6)Provides that any person that possesses any substance,
material, or combination of substances or materials with the
intent any destructive device or any explosive without first
obtaining a valid permit that destructive device or explosive,
is guilty of a felony punishable by imprisonment in a county
jail for two, three, or four years. (Pen Code, § 18720.)
7)States that every person that does any of the following is
guilty of a felony punishable by imprisonment in a county
jail for two, four, or six years:
a) Carries any destructive device or any explosive on any
vessel, aircraft, car, or other vehicle that transports
passengers for hire;
b) While on board any vessel, aircraft, car, or other
vehicle that transports passengers for hire places or
carries any destructive device or explosive in any hand
baggage, roll, or other container; and;
c) Places any destructive device or any explosive in any
baggage that is alter checked with any common carrier.
(Pen Code, § 18720.)
8)States except as provided, any person, firm or corporation
who, within this state, sells, offers for sale, or knowingly
transports any destructive device, other than fixed ammunition
of a caliber greater than .60 caliber, is guilty of a felony
punishable by imprisonment in a county jail for two, three, or
four years. (Pen. Code, § 18730.)
9)Provides that every person that possess, explodes, or ignites,
or attempts to possess, explode, or ignite any destructive
device or any explosive with the intent to injure, intimidate,
or terrify any person, or with intent to wrongfully injure or
destroy any property is guilty of a felony punishable by
imprisonment in a county jail for three, five, or seven years.
(Pen. Code, § 18740.)
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10)Provides that every person that explodes, or ignites, or
attempts to explode, or ignite any destructive device or any
explosive with the intent to murder is guilty of a felony
punishable by imprisonment in the state prison for life with
the possibility of parole. (Pen. Code, § 18745.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "We have seen a
worrying increase in the number of honey oil related butane
explosions. In my own district, one explosion knocked a
neighboring house off its foundation. Unfortunately,
currently law does not provide an adequate means of addressing
these butane related explosions. If a person manufacturing
honey oil using butane causes an explosion, but that same
explosion does not cause fire damage to the structure, the
only remedy available to law enforcement is to charge
vandalism. This is hardly an appropriate charge for such a
dangerous act. AB 849 remedies this situation by ensuring that
all honey oil related butane explosions can be charged to
appropriately reflect their gravity."
2)Background: According to background materials supplied by the
author, the law as it currently exists holds a defendant
liable for a drug lab that catches fire but not a drug lab
that explodes. This yields an inconsistent result where much
more dangerous explosions that cause significant damage (to
persons and property) are going unpunished or are being
treated as vandalism.
The increasing popularity of Butane Honey Oil (BHO), which is
a form of concentrated cannabis, and the large profits that
can be made from its manufacture, has resulted in a
significant public safety issue from the damage caused when
BHO labs explode. BHO is manufactured through a chemical
extraction process in which the THC from unused parts of a
marijuana plant is extracted by using butane. Butane is
highly combustible and in the "off gassing" stage of the BHO
manufacturing process, often explodes when a careless
manufacturer ignites a spark or flame. Because butane gas is
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odorless and colorless it can build up in a home or apartment
without the occupants or neighbors being aware of the danger.
In Los Angeles County, there have been 32 BHO explosions in
the last two years. In the majority of these cases, the
exploding butane gas ignites and there is significant
structural damage caused by the resulting fire. When this
occurs, the district attorney normally files a charge of
violating California Penal Code section 452(b) (recklessly
causing a fire). The elements of California Penal Code
section 452(b) require there to be a fire and damage to a
structure, and the damage must be the result of the fire.
Although most of the labs that explode do result in a fire, a
problematic scenario has arisen when either the damage from
the fire was to personal property or the damage to the
structure was caused by the explosion and not the fire.
Both problems lead to the same result- insufficient evidence
for California Penal Code section 452(b) as currently written.
As currently written, California Penal Code section 452(b)
requires damage to a structure caused by a fire. Damage to a
structure caused by an explosion does not qualify. This is an
inconsistent result. This is an arbitrary distinction that
leaves district attorneys with the only option of filing
California Penal Code section 594(a) - vandalism -- to reflect
the damage done and the loss to the property owner, but it
does not adequately represent the risks taken by the defendant
and the scope of the harm he or she has done. If the harm is
done to the perpetrator's own property, vandalism cannot be
charged either as one cannot vandalize his or her own
property.
In People v. Ellebracht, the explosion caused significant
damage, but the fire (which was put out quickly by a neighbor)
did not cause any damage to the structure. All of the
structural damage was caused by the explosion. In this case,
the defendant was making Butane Honey Oil in apartment he was
living in. He was not the renter or the owner of the
property. He placed the mixture into the freezer to cool it
down. The freezer door blew off. The explosion caused two
glass sliding doors to break. There was no damage to the
structure from fire specifically, however, the overall impact
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of the defendant's actions were significant.
In People v. Jones, the fire damaged the defendant's personal
property only. The damage to the structure was caused by the
explosion. In this case, the defendant was making Butane
Honey Oil in mass quantities throughout the three bedroom
house. The explosion occurred in the garage where it resulted
in the melting of plastic on the cases of butane (defendant's
property) and the bowing out of the garage door by three feet.
Glass panels of the door shattered. There was no damage to
the structure from fire specifically, however, the overall
impact of the defendant's actions were significant.
3)Argument in Support: The California Professional Firefighters
state, "AB 849 provides that defendants be held liable for
damage caused when a drug lab explodes, whether it is caused
by a resulting fire or the explosion itself. This bill
insures that butane hash oil lab explosions are addressed in
the same manner as other drug lab explosions.
"Drug labs provide serious, inherent risks on a myriad of
fronts, particularly the high risk for explosion and hazardous
material release. Such risks compromise the health and safety
of neighbors, as well as the health and safety of our members
who are the first to respond to an emergency situation
involving such labs. This bill provides our states
communities with an effective means of holding a responsible
party accountable for the damage to properties and personal
belongings resulting from explosions of this kind.
4)Argument in Opposition: The California Public Defenders
Association submitted an opposition letter correctly pointed
out that the bill as introduced penalized "causing an
explosion" and did not require that any damage result. Also,
the sections amended, in the introduced bill, were not amended
in such a way as to require that the prohibited explosion
cause damage to property, structure or lands. The bill is now
being heard as proposed to be amended in Committee, and will
be amended in Committee to address the stated concerns of
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Public Defenders Association. The bill as proposed to be
amended requires that an explosion that occurs in the course
of butane hash oil extraction results in great bodily injury
or damage to structures, property or forest land.
5)Related Legislation:
a) AB 772 (Baker) prohibited any person from purchasing
more than 400 milliliters of butane in a calendar month.
AB 772 was removed from this Committee's hearing agenda at
the request of the author.
b) SB 305 (Bates) expands several enhancements related to
the manufacture of a controlled substance and the
possession of specified precursor chemicals in a structure
where a child under 16 years of age is present. SB 305 is
pending hearing in the Senate Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
Los Angeles County District Attorney's Office (Sponsor)
Association for Los Angeles Deputy Sheriffs Association
Association of Deputy District Attorneys
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Supervisors Association
California State Sheriffs' Association
California Narcotics Officers' Association
California Professional Firefighters
California State Lodge Fraternal Order of Police
California State Firefighters Association
Central Coast Forest Association
Los Angeles County Professional Peace Association
Long Beach Police Officers Association
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Sacramento County Deputy Sheriffs' Association
Santa Ana Police Officers Association
Opposition
California Public Defenders Association
Analysis Prepared
by: Gregory Pagan / PUB. S. / (916) 319-3744