BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 947 Hearing Date: July 14, 2015
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|Author: |Chávez |
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|Version: |February 26, 2015 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JM |
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Subject: Controlled Substances: Firearms
HISTORY
Source: California District Attorneys Association; San Diego
County District Attorney
Prior Legislation:AB 117 (Committee on Budget) - Ch. 39, Stats.
of 2011
AB 109 (Committee on Budget) - Ch. 15, Stats. of 2011
Support: Peace Officers Research Association of California
Opposition:None known
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to: 1) provide that a person who is
convicted of being armed with a firearm while in possession of a
specified controlled substance is punishable pursuant to Section
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1170, subdivision (h), for a felony jail term of 16 months, two
years or three years, unless he or she is disqualified from a
jail term by a serious felony conviction or sex offender
registration status; and 2) provide that a person who is subject
to an enhancement of three, four or five years for being
personally armed with a firearm in the commission of a specified
drug commerce offenses shall serve the entire sentence in
prison.
Existing law:
Specifies that every person who unlawfully possesses any amount
of a substance containing cocaine base, cocaine, heroin,
methamphetamine, crystal or liquid phencyclidine (PCP), or who
possesses 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).)
Defines "armed with" a firearm as having it available for
immediate offensive or defensive use. (Health & Saf. Code, §
11370.1 subd. (a).)
Specifies that any person who is personally armed with a firearm
in the commission or attempted commission of a specified
controlled substance commerce or manufacturing offense 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).)
This bill:
Specifies that any person who commits a felony offense of
unlawfully possessing any amount of a substance containing
cocaine or another specified drug, a crystalline or liquid
substance containing PCP, plant material containing PCP, or a
hand-rolled cigarette treated with PCP, while armed with a
loaded, operable firearm, is subject to imprisonment pursuant to
Penal Code Section 1170, subdivision (h) for two, three, or four
years.
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Specifies that any person who is personally armed with a firearm
in the commission of numerous specified controlled substance
commerce or manufacturing offenses, pursuant to Section 11351,
11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379,
11379.5, or 11379.6 of the Health and Safety Code m is subject
to imprisonment in the state prison for three, four, or five
years.
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.
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
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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:
The Public Safety Realignment Act of 2011 (AB 109) was
chaptered into law to address prison overcrowding,
escalating costs and rehabilitation issues caused by
incarcerating low-level offenders in state prison. A
seemingly unintended consequence of AB 109 is that a
person convicted of simple possession of a controlled
substance while armed with a loaded firearm is
punishable by state imprisonment. However, a person
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convicted for the far more egregious crimes of
selling, and possessing a controlled substance for
sale, while armed with a loaded firearm is punishable
by time in a local prison.
Although the numbers of both groups appear similar,
the inequity caused by sending the less dangerous
person to prison is inconsistent with the goals of AB
109. AB 947 would alternate these punishments between
being served in county jail and state prison. This
bill would make it a felony, punishable by county jail
if an individual is found in possession with both a
firearm and illegal substances. For those convicted
with a firearm in the commission of a specified
controlled substance with the intent to sell, the
individual would be required to serve his/her time in
state prison.
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.Under Criminal Justice Realignment Persons Convicted of
Low-Level Felonies Serve Their Executed Sentences in County
Jail, not Prison, with Specified Exceptions
AB 109 - Ch. 15, Stats. 2011 - enacted what is generally
referred to as criminal justice realignment. Realignment made a
number of felonies punishable by imprisonment in a county jail,
not state prison, unless the defendant is disqualified by a
serious felony conviction or sex offender registration status.
The felonies punishable by imprisonment in county jail are
generally on the lower end of the felony spectrum. Prior to
realignment, the only convicted felons in county jails were
those who were convicted of a felony, granted probation, but
ordered to serve a term in jail as a condition of probation, not
as a sentence.
3.Punishment Scheme for Health and Safety Code section 11370.1
and Penal Code section 12022, subdivision (c)
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A defendant who convicted of possession of specified controlled
substances for personal use while armed with a loaded, operable
firearm is punishable by a term in a state prison of two, three,
or four years. (Pen. Code § 11370.1.) This penalty was not
changed by realignment.
Prior to realignment, a person who was personally armed with a
firearm in the commission of specified drug commerce offenses
was subject to an prison term enhancement of three, four, or
five years. (Pen. Code § 12022, subd. (c).) This enhancement
became subject to sentencing pursuant Penal Code Section 1170,
subdivision (h) through realignment. A defendant convicted of
specified drug commerce offenses with an enhancement allegation
for being armed with a firearm serves his or her sentence in
jail, unless excluded because of serious felony conviction or
status as a sex offender registrant.
Current law thus provides that the sentence for the more serious
offense of drug commerce while armed will be served in jail and
the sentence for the less serious offense of drug possession
while armed will be served in jail. This is an anomaly, as
felony jail terms under realignment were intended for
lower-level felonies. This bill reverses the penalty provisions
for these offenses and provides that drug commerce while armed
with a firearm is to be served in prison, while drug possession
while armed is to be served in jail.
This bill does not directly change where the sentence for a drug
commerce crime would be served, unless a firearm enhancement is
established. Drug commerce crimes are generally subject to
felony jail terms pursuant to Penal Code Section 1170
subdivision (h). This bill would direct a court to impose a
state prison enhancement when the defendant has been convicted
of a drug trafficking offense while personally armed with a
firearm. The defendant would thus be convicted of a jail felony
crime for which the enhancement is to be served in prison. In
such cases, the enhancement provision requiring a prison term
controls and the defendant serves the entire sentence in prison,
regardless of whether the underlying offense would otherwise be
punishable by a felony jail sentence. (People v. Vega (2014)
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222 Cal. App. 4th 1374, 1387.)
4.Argument in Support
The California District Attorneys Association argues in support
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 (109) 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 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.
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