BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 849 Hearing Date: July 14, 2015
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|Author: |Bonilla |
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|Version: |May 4, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Unlawful Cannabinoid Extraction: Explosion
HISTORY
Source: Los Angeles County District Attorney
Prior Legislation:None directly on point
Support: Association of Deputy District Attorneys; Association
for Los Angeles Deputy Sheriffs; California
Association of Code Enforcement Officers; California
College and University Police Chiefs Association;
California Correctional Supervisors Organization;
California District Attorneys Association; California
Narcotic Officers' Association; California
Professional Firefighters; California State
Firefighters' Association; California State Lodge,
Fraternal Order of Police; California State Sheriffs'
Association; Central Coast Forest Association; Long
Beach Police Officers' Association; Los Angeles County
Professional Peace Officers Association; Los Angeles
Police Protective League; Riverside Sheriffs
Association; Sacramento County Deputy Sheriffs'
Association; Santa Ana Police Officers' Association
Opposition:None known
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Assembly Floor Vote: 74 - 0
PURPOSE
The purpose of this bill is to provide that a person who causes
an explosion in the solvent extraction of cannabinoids is guilty
of an alternate felony-misdemeanor or a misdemeanor, as follows:
1) where the explosion causes great bodily injury, the felony
sentence is a term of two, four or six years, with a maximum
felony or misdemeanor fine of $10,000; 2) where the explosion
causes damage to inhabited property, the felony sentence is a
term of two, three or four year, with a maximum felony or
misdemeanor fine of $10,000; 3) where the explosion causes
damage to a structure or forest land, the felony sentence is a
term of 16 months, two years or three years, with a maximum
felony or misdemeanor fine of $10,000; and 4) where the
explosion causes damage to the property of another person, the
offense is a misdemeanor, with maximum jail term of six months,
a fine of up to $1,000, or both.
Existing law:
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.
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.
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
years, or by imprisonment in the county jail not to exceed
one year, or by a fine, or by both imprisonment and a fine.
Unlawfully causing a fire of a structure or forestland
is a felony punishable by imprisonment in the state prison
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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.
Unlawfully causing a fire of property is a misdemeanor.
(Pen. Code § 452.)
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:
The defendant was previously convicted of felony arson;
A peace officer, firefighter, or other emergency
personnel suffered great bodily injury;
The defendant proximately caused great bodily injury to
more than one victim in a single incident; or,
The defendants proximately caused multiple structures to
burn. (Pen. Code § 452.1.)
States that the following terms have the following meanings:
Structure means any building, or commercial or public
tent, bridge, tunnel, o power plant;
Forest land means any brush covered land, cut over land,
forest, grasslands, or woods;
Property means real property or personal property, other
than a structure or forest land;
Inhabited means being used for dwelling purposes whether
occupied or not.
Inhabited structure and inhabited property do not
include real property on which an inhabited structure or an
inhabited property is located;
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,
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.)
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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.).
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:
On a public street or highway;
In or near any theater, hall, school, college, church,
hotel, or other public building
In or near any private habitation
In, on, or near any aircraft, railway passenger train,
car, cable road, cable car, or vessel engaged in carrying
passengers for hire; and,
In, on, or near any other public place ordinarily passed
by human beings. (Pen Code § 18715.)
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.)
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:
Carries any destructive device or any explosive on any
vessel, aircraft, car, or other vehicle that transports
passengers for hire;
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;
Places any destructive device or any explosive in any
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baggage that is alter checked with any common carrier.
(Pen Code, § 18720.)
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.)
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.)
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.)
This bill
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.
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
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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.
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.
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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
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In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Need for this Bill
According to the author:
We have seen a worrying increase in the number of
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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.Sentencing and Conviction Issues: Author's Amendments
The introduction of this bill was prompted by a rash of
explosions caused by the making of hash[ish] oil - an
increasingly popular form of concentrated cannabis - through
extraction with a solvent. As described below, the solvent most
commonly used is butane, thus the name "Butane Honey Oil," or
"BHO." Explosions occur when the butane that extracts the "oil"
from marijuana fails to dissipate, builds up, sinks to the floor
in an enclosed space and explodes from any spark. Extracting the
oil outside largely eliminates the risk of explosion, as
volatile butane quickly evaporates and disperses in the air.
The current version of the bill would require the prosecution to
prove that the defendant committed the crime of manufacturing a
controlled substance by chemical synthesis or chemical
extraction in every case involving a BHO making explosion that
caused serious damage. The penalty for the most serious form of
causing an explosion while extracting BHO - an explosion that
caused great bodily injury - has a lower penalty than the crime
of manufacturing BHO, per se. That would have caused confusion
and complex litigation. For example, if the prosecutor charged
the defendant only with causing an explosion through making BHO,
could the prosecutor ask the judge to sentence the defendant for
manufacturing the BHO, as that crime was necessarily proved in
proving the crime involving an explosion.
The author will offer amendments in committee to focus the bill
on explosions that cause injury to persons and significant
damage to residences and structures where people were present
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during the explosion. The amendments will apply the bill to any
recklessly caused explosion. Intentional conduct involving
explosive devices that causes or threatens serious harm is
subject to prosecution under other provisions of law.
Prosecutors can still bring charges for BHO manufacturing.
However, while it is not legal to make BHO, a person with a
medical cannabis recommendation may legally possess BHO. Where
a person authorized to use medical cannabis recklessly causes an
explosion in the making of BHO for his or her own authorized
use, prosecutors may choose to prosecute under this bill rather
than under the relatively harsh provisions of the controlled
substances manufacturing statute.
The amendments also include a reference to the process in
existing law of a civil compromise. In a civil compromise, the
defendant and the victim can agree that the defendant will fully
compensate the victim for his or her losses apart from criminal
prosecution. The court has discretion to approve or reject the
compromise. Civil compromise is strictly prohibited for a
felony or any domestic violence related charges. A compromise
in an explosion case could allow the victim to quickly repair
his or her property and the defendant could avoid a criminal
conviction for reckless conduct.
The following mockup sets out the proposed amendments, which
would replace the current language in the bill:
A person who recklessly causes an explosion is guilty
of a public offense.
(a) Where the explosion causes great bodily injury to
another person, the offense is a felony, punishable
pursuant to Section 1170, subdivision (h) for two,
four or six years, or a misdemeanor, punishable by
imprisonment in a county jail for up to one year.
(b) Where the explosion causes damage in the amount of
a least $20,000 to an inhabited dwelling or an any
structure in which a person was present at the time of
the offense, the offense is a felony, punishable
pursuant to Section1170, subdivision (h), or a
misdemeanor, punishable by imprisonment in a county
jail for up to one year.
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(c) Where the explosion causes damage in the amount of
a least $2,000 to an inhabited dwelling or any
structure in which a person was present at the time of
the offense, the offense is a misdemeanor, punishable
by imprisonment in a county jail for up to one year
(c) The court may not impose sentence pursuant to
subdivision (a) and an enhancement for infliction of
great bodily injury if the same injury is an element
of the crime and the basis for the enhancement.
(e) For the purposes of this Section, the amount of
damages caused by the defendant's conduct is
determined by the market cost of repair or replacement
in the place where the offense occurred.
(f) For purposes of this Section, inhabited means
currently being used for dwelling purposes, whether
occupied or not.
(g) A misdemeanor charged under this Section is
subject to a civil compromise pursuant to Sections
1377-1379.
(h) Prosecution under this Section does not limit
prosecution under any other provision of law.
3.Background on Concentrated Cannabis, Including Hashish, Butane
Honey Oil and Related Substances
The most common and widely known form of concentrated cannabis
is hashish, or hash. There are references to hashish use in the
Middle East at least as early as the 10th Century.<1><2>
Hashish has traditionally been made by hand, with simple
screens, presses and cloth bags - commonly, marijuana is
essentially pounded into a resinous powder that is heated or
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<1>
http://druglibrary.org/schaffer/hemp/history/first12000/2.htm
<2>
http://www.narconon.org/drug-information/hashish-history.html
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pressed to form a block or sticky paste.<3>
Hash oil is generally made by using a solvent to strip the
essential oils from marijuana plant matter. The resulting
material is often described as "honey oil" or "wax," reflecting
the appearance of the product. A relatively new and popular
form of concentrated cannabis is "butane honey oil" or "BHO."
BHO is commonly made by packing marijuana in a steel or glass
tube, introducing or injecting butane in one end of the tube and
straining the liquid material that emerges from the other end of
the tube. The liquid may be heated - in warm water - to purge
the butane. The resulting product is a resin or oil. Butane is
volatile and highly flammable. Using too much heat or exposing
the butane to a spark can cause an explosion, especially inside
a structure, as evaporated butane gas can fill a room.
Extracting BHO outside allows the butane vapors to dissipate
into the air. Other solvents - including alcohol - can be used
to produce hash oil.
In Colorado, hash oil is legal, but production is highly
regulated. The Los Angeles Times reported on February 5, 2014:
Safer forms of production exist where it is sanctioned
and regulated under state law. In Colorado's highly
controlled market, state officials this month set
forth rules requiring hash oil producers to follow the
same procedures that manufacturers use to extract oils
from plants to make canola oil, fragrances, food
additives, pharmaceuticals and shampoo.
Butane extraction must be done in a closed loop system
so that no vapor escapes, in rooms with powerful
ventilation systems. And the facilities must comply
with health and safety codes and be inspected by a
certified industrial hygienist or professional
engineer.
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<3> http://nimbinwave.com/facts/afghanistan-hashish
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Hash oil contains a very high concentration of the active
chemicals in marijuana, most notably THC, which is understood to
produce the high experienced by the user. However, numerous
other chemicals are found in marijuana, hashish and hash oil.
The most widely known of these is CBD. CBD antagonizes
(cancels) the effect of THC. The National Cancer Institute in
the National Institutes of Health has noted that "[t]he use of
Cannabis for medicinal purposes dates back at least 3,000
years." CBD and THC have been identified as having numerous
medical benefits, including relief from nausea, pain and
inflammation, reducing seizures and shrinking and inhibiting the
growth of tumors."<4>
4. Related Bills
SB 212 (Mendoza) would define two factors in aggravation that
apply in cases in which the defendant is charged with
manufacturing a controlled substance by chemical synthesis or
extraction. Specifically, the court may consider as a factor in
aggravation that the defendant manufactured methamphetamine
within 200 feet of an occupied residence or any structure in
which others were present at the time of the offense. Where the
defendant has been convicted of extracting concentrated cannabis
through the use of a volatile solvent, the court may consider as
a factor in aggravation that the offense occurred within 300
feet of an occupied residence or any structure in which others
were present at the time of the offense. SB 212 is on the Third
Reading file in the Assembly.
SB 305 (Bates) would have added the manufacturing of
concentrated cannabis by chemical synthesis or extraction to
enhancements for causing great bodily to a child and for
manufacturing the drug in a place where a child under the age of
16 resides. The existing enhancement applies to the
manufacturing of methamphetamine or phencyclidine by chemical
synthesis or extraction. SB 305 was held in Senate
Appropriations.
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<4>
http://www.cancer.gov/cancertopics/pdq/cam/cannabis/patient/page2
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