BILL ANALYSIS Ó
AB 947
Page 1
Date of Hearing: April 14, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
947 (Chávez) - As Introduced February 26, 2015
SUMMARY: Requires individuals convicted of possession of
specified drugs (personal use) while armed with a loaded firearm
to be punishable in county jail, instead of state prison,
without changing the length of imprisonment. Requires
individuals convicted of specified drug offenses (trafficking)
while armed with a firearm to be imprisoned in the state prison,
instead of county jail, without changing the length of
imprisonment. Specifically, this bill:
1)Specifies the punishment for persons who commit the felony
offenses of unlawfully possessing any amount of a substance
containing cocaine base, a substance containing cocaine, a
substance containing heroin, a substance containing
methamphetamine, a crystalline substance containing
phencyclidine, a liquid substance containing phencyclidine,
plant material containing phencyclidine, or a hand-rolled
cigarette treated with phencyclidine, while armed with a
loaded, operable firearm, as imprisonment in the county jail
for two, three, or four years.
2)Specifies the punishment for persons who are personally armed
with a firearm in the commission of a violation or attempted
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violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6,
11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and
Safety Code (these offenses generally address the possession
of drugs for sale, or sale drugs, or manufacturing of drugs)
shall be punished by an additional and consecutive term of
imprisonment in the state prison for three, four, or five
years.
EXISTING LAW:
1)Specifies that every person who unlawfully possesses any
amount of a substance containing cocaine base, a substance
containing cocaine, a substance containing heroin, a substance
containing methamphetamine, crystal or liquid phencyclidine
(PCP), plant material containing PCP, or a hand-rolled
cigarette treated with PCP while armed with a loaded, operable
firearm is guilty of a felony punishable by imprisonment in
the state prison for two, three, or four years. (Health & Saf.
Code, § 11370.1, subd. (a).)
2)Defines "armed with" as having a firearm available for
immediate offensive or defensive use. (Health & Saf. Code, §
11370.1, subd. (a).)
3)States that any person who is convicted under this section
shall be ineligible for diversion or deferred entry of
judgment. (Health & Saf. Code, § 11370.1, subd. (b).)
4)Specifies that person who is personally armed with a firearm
in the commission of a violation or attempted violation of
specified narcotics sales offenses shall be punished by an
additional and consecutive term of imprisonment in the county
jail for three, four, or five years. (Pen. Code, § 12022,
subd. (c).)
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5)Mandates that a person who is not personally armed with a
firearm who, knowing that another principal is personally
armed with a firearm, is a principal in the commission of an
offense or attempted offense specified in subdivision (c),
shall be punished by an additional and consecutive term of
imprisonment in the county jail for one, two, or three years.
(Pen. Code, § 12022, subd. (d).)
6)States that for purposes of imposing an enhancement under
Section 1170.1, the enhancements under this section shall
count as a single enhancement. (Pen. Code, § 12022, subd.
(e).)
7)Allows the court to strike the additional punishment for the
enhancements in an unusual case where the interests of justice
would best be served, if the court specifies on the record and
enters into the minutes the circumstances indicating that the
interests of justice would best be served by that disposition.
(Pen. Code, § 12022, subd. (f).)
8)States that every person who possesses for sale or purchases
for purposes of sale any specified drugs or narcotics shall be
punished by imprisonment in the county jail for two, three, or
four years. (Health & Saf. Code, § 11351.)
9)Specifies that every person who possesses for sale or
purchases for purposes of sale cocaine base, as specified,
shall be punished by imprisonment in the county jail for a
period of two, three, or four years. (Health & Saf. Code, §
11351.5)
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10)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 specified drugs or narcotics, unless upon
the written prescription of a physician, dentist, podiatrist,
or veterinarian licensed to practice in this state, shall be
punished by imprisonment in the county jail for three, four,
or five years. (Health & Saf. Code, § 11352, subd. (a).)
11)States that any person who has under his or her management or
control any building, room, space, or enclosure, either as an
owner, lessee, agent, employee, or mortgagee, who knowingly
rents, leases, or makes available for use, with or without
compensation, the building, room, space, or enclosure for the
purpose of unlawfully manufacturing, storing, or distributing
any controlled substance for sale or distribution shall be
punished by imprisonment in the county jail for not more than
one year, in the county jail for 16 months, two or three
years. (Health & Saf. Code, § 11366.5, subd. (a).)
12)Specifies that any person who has under his or her management
or control any building, room, space, or enclosure, either as
an owner, lessee, agent, employee, or mortgagee, who knowingly
allows the building, room, space, or enclosure to be fortified
to suppress law enforcement entry in order to further the sale
of any amount of cocaine base as specified, cocaine as
specified, heroin, phencyclidine, amphetamine,
methamphetamine, or lysergic acid diethylamide and who obtains
excessive profits from the use of the building, room, space,
or enclosure shall be punished by imprisonment in the county
jail for two, three, or four years. (Health & Saf. Code, §
11366.5, subd. (b).
13)Specifies that any person who utilizes a building, room,
space, or enclosure specifically designed to suppress law
enforcement entry in order to sell, manufacture, or possess
for sale any amount of cocaine base as specified, cocaine as
specified, heroin, phencyclidine, amphetamine,
methamphetamine, or lysergic acid diethylamide shall be
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punished by imprisonment in the county jail for three, four,
or five years. (Health & Saf. Code, § 11366.6.)
14)States that a person who possesses for sale specified
controlled substances that meets any of the following criteria
shall be punished by imprisonment in the county jail for 16
months, two, or three years. (Health & Saf. Code, § 11378.)
15)States that every person who possesses for sale phencyclidine
(PCP) or any analog or any precursor of phencyclidine as
specified, shall be punished by imprisonment in the county
jail for a period of three, four, or five years. (Health &
Saf. Code, § 11379.)
16)States 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 phencyclidine or any of its analogs as
specified, unless upon the prescription of a physician,
dentist, podiatrist, or veterinarian licensed to practice in
this state, shall be punished by imprisonment in the county
jail for a period of three, four, or five years. (Health &
Saf. Code, § 11379.5, subd. (a).)
17)Specifies that any person who transports for sale any
specified controlled substances within this state from one
county to another noncontiguous county shall be punished by
imprisonment pursuant in the county jail for three, six, or
nine years. (Health & Saf. Code, § 11379.5, subd. (b).)
18)States that every person who manufactures, compounds,
converts, produces, derives, processes, or prepares, either
directly or indirectly by chemical extraction or independently
by means of chemical synthesis, any specified controlled
substance shall be punished by imprisonment in the county jail
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for three, five, or seven years and by a fine not exceeding
fifty thousand dollars ($50,000). (Health & Saf. Code, §
11379.6, subd. (a).)
19)Provides that every person who offers to manufacture drugs as
specified shall be punished by imprisonment in the county jail
for three, four, or five years. (Health & Saf. Code, §
11379.6, subd. (c).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "California is
one of the nation's leaders in drug defense; this change in
punishment is essential to continue the war on drugs and is in
conformity with the goals of the Legislature in enacting AB
109."
2)Realignment: AB 109, Chapter 15, Statutes of 2011. AB 109 is
generally referred to as "realignment." This bill made a
number of felonies punishable by imprisonment in a county jail
as opposed to state prison. The felonies punishable by
imprisonment in county jail were generally deemed to be on the
lower end of the felony spectrum. The bill continued to
require imprisonment in state prison for serious and violent
felonies, and felonies requiring registration as a sex
offender. Also requiring imprisonment in the state prison,
were situations when the defendant was convicted on a felony
and had a prior conviction for a serious or violent felony, or
a felony subjecting the defendant to registration as a sex
offender.
3)Punishment Scheme for Health and Safety Code section 11370.1
and Penal Code section 12022(c) Prior to Realignment: Prior
to realignment, possession of specified controlled substances
for personal use while armed with a loaded, operable firearm
was punishable by state prison for two, three, or four years.
(Pen. Code, § 11370.1.) Prior to realignment, a person who
was personally armed with a firearm in the commission of
specified drug trafficking offenses was subject to an
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enhancement which imposed an additional and consecutive term
of imprisonment in the state prison for three, four, or five
years. (Pen. Code, § 12022, subd. (c).)
4)Proposed Legislation Would Not Change the Sentencing Scheme
for Individuals Charged with Specified Drug Trafficking
Offenses Without an Enhancement That Imposes State Prison:
Pursuant to realignment drug trafficking offenses including
possession of drugs for sale, sale of drugs, and manufacturing
of drugs are now punishable under Penal Code section 1170(h)
with imprisonment in the county jail, rather than state
prison. (Pen. Code, §§ 11351, 11351.5, 11352, 11366.5,
11366.6, 11378, 11378.5, 11379, 11379.5, 11379.6.)
Individuals convicted on any of those drug trafficking
offenses without an enhancement specifying state prison, would
continue to be imprisoned in county jail under Pen. Code
section 1170(h).
The proposed legislation would impose a state prison
enhancement when an individual is convicted of the specified
drug trafficking offenses while personally armed with a
firearm. The imposition of that state prison enhancement
would require that time imposed for the underlying drug
trafficking offense also be served in state prison. Under
People v. Vega (2014), 222 Cal. App. 4th 1374, the imposition
of an enhancement imposing state prison on a base term
punishable in county jail results in the entire sentence (base
term + enhancement) served in state prison.
5)Argument in Support: According to the California District
Attorney Association, "As you know, Realignment was intended
to address prison overcrowding, escalating costs, and
rehabilitation issues caused by incarcerating low-level
offenders in the state prison. AB 109 sought to correct these
issues by allowing such offenders to serve their prison time
in local jail, leaving room in state prison for more serious
offenders.
"Unfortunately, the drafting of AB 1089 created an incongruous
result whereby a person convicted of simple possession of a
controlled substance while armed with a loaded and operable
firearm is punishable by a term in state prison, while a
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person convicted of the far more egregious crime of selling,
and possessing a controlled substance (other than marijuana)
for sale, while armed with a loaded and operable firearm is
punishable in county jail pursuant to PC 1170(h).
"AB 947 would effectively flip the location of where these
sentences are served - armed drug dealers and traffickers
would be state prison eligible, while those who simply possess
controlled substances while armed would serve their sentences
locally. We believe that this is consistent with the intent
of the Legislature, and the goals of Realignment, that low
level offenders serve time locally, and more serious offenders
serve time in state prison."
6)Prior Legislation: AB 109, Chapter 15, Statutes of 2011. This
law, commonly referred to as "realignment," generally provided
that specified felonies are punishable by imprisonment in a
county jail, as opposed to state prison. The bill provided
exceptions to imprisonment in a county jail for a variety of
felonies, including serious felonies and violent felonies, as
defined, felonies requiring registration as a sex offender,
and when the defendant has a prior conviction for a serious or
violent felony, or a felony subjecting the defendant to
registration as a sex offender, among other exceptions. Those
exceptions continued to be punished by imprisonment in state
prison.
REGISTERED SUPPORT / OPPOSITION:
Support
San Diego County District Attorney
California District Attorneys Association
Opposition
None
AB 947
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Analysis Prepared
by: David Billingsley / PUB. S. / (916) 319-3744